Orrin Hatch

Mr. HATCH

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.

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 I ask unanimous consent that that word be withdrawn.

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

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, I am happy to yield for a parliamentary inquiry.

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

Mr. HATCH. Of course I will not. First, I have the floor and I am retaining the floor because I have questions from both sides. I am willing to take questions from your side. I am not ignoring those. It is about time the American people hear the truth. We have heard enough rubbish. Now we should hear the truth. In all honesty, that is what we are going to do this evening. I have heard a lot of ridiculous remarks over there that do not really deserve listening to. So we are going to hear some remarks tonight that deserve being listened to, and we are going to get the facts. This unmitigated bullcorn that he has not answered questions is exactly that. I think the distinguished Junior Senator from Tennessee tore the hide off the Democrats tonight. I was so doggone impressed, I want to compliment my colleague. But he was not the only one. I have had colleague after colleague stand up over here and tell the truth, and I have had colleague after colleague over there hide behind these phony issues they have raised. They are phony, and it is a double standard. I am ashamed of some of the arguments that have been made over there, absolutely ashamed, and every Hispanic in America ought to be ashamed that they would stoop to this level against a qualified nominee. But not just every Hispanic, every American who wants a great judiciary ought to be outraged by what is happening. I have never seen this type of treatment of anybody who has been nominated to a circuit court of appeals. I have seen some pretty shabby treatment in my day for some of the people who have been appointed by Republican Presidents, but nobody has had to endure the calumny and the downright despicable comments that this Hispanic nominee, with all these qualifications in the world, has had to endure. It is disgusting. I know there are people on the other side who have clear thinking who ought to be disturbed by this, and I hope they will rise up in that caucus and say, we have had enough of this. We should not be treating any American this way, let alone somebody like this Hispanic.

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

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

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

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----

Mr. HATCH. Without losing my right to 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. 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. 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. It was raised in a question to me.

Mr. HATCH. I will take the Senator's word on that. There is no question the distinguished Senator did submit written questions which were answered, but I also answer the Senator that this hearing went on all day. It was an extraordinarily long hearing, and if the Senator had any questions that he wanted to ask, I think it was his duty and his obligation to get there and ask them, by the way, because we can all find time during the complete day's hearing to come to the committee. I am not trying to find fault. What I am saying is that it is one thing to be able to speak from personal experience of having been there and asked questions; it is another thing to continually come to the floor and berate Mr. Estrada for not answering questions when, if you refer to the remarks of the distinguished junior Senator from Tennessee earlier this evening, that just is not true. The fact is, he answered the questions.

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

Mr. HATCH. I will say this--and I compliment my dear colleague from Illinois--my colleague from Illinois did submit written questions, but there were answers to those written questions as well. I have to say, my colleague from Illinois was 1 of 2 out of 9 Democrats--actually 10 at the time--who submitted questions. All of a sudden to come here with crocodile tears----

Mr. HATCH. Let me finish my remarks and, of course, I will. But to come here with crocodile tears and tell us that he just did not do enough and he did not answer the questions when he did, in fact, do so, and to misrepresent, as some have done--I am not saying the distinguished Senator from Illinois because I have not heard all of his remarks; people will have to judge that for themselves. But to come here and make those kinds of accusations when this man had one of the longest hearings, answered many more questions than almost any Clinton circuit court of appeals nominee had to answer when I was chairman, and to act like he does not deserve to have an up-or-down vote on the Senate floor, which we gave to every Clinton nominee, I think is a little bit beyond the pale, and I think that is what has been happening around here. Personally, I resent it, on behalf of the United States of America and on behalf of this Hispanic nominee who has all of these qualifications which I believe even the Senator from Illinois has acknowledged.

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

Mr. HATCH. Well, he worked for both the Clinton administration and a Republican administration. And he got the highest raves and performance evaluations by both administrations, meaning that he worked in a bipartisan way with both administrations. Unfortunately, in order to create a red herring issue that they can hide behind, our colleagues on the other side have demanded his recommendations while at the Solicitor General's Office--the attorney for the U.S.A., for us citizens, the private, privileged memoranda, his recommendations on appeals on matters involving certiorari and on matters involving amicus curiae. There has never been such a move. To my knowledge, the Justice Department, the Solicitor General's Office has never--nor will it ever--give up those documents because they are privileged executive branch documents. I cannot help but believe our colleagues on the other side know as much about that as I do. They know that is absolutely accurate, and I am just suggesting this is a red herring issue so that they can hold up this nominee with a filibuster, of all things--the first in history. Let me just go further on that because it is a very important issue, the only issue they seem to have. I hate to say it, but some of our friends in the media ignore the fact that the seven living former Solicitors General wrote a letter to Chairman Leahy that says this: We write to express our concerns about your present 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-- By the way, of these seven former Solicitors General--the only living ones--four of them, or better than 50 percent, are Democrats. Three he worked for. They said: As former heads of the Office of the Solicitor General under Presidents of both parties, we can attest to the vital importance of candor and confidentiality of the Solicitor's decisionmaking process. I will read a couple other thoughts here: 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. Remember, four of these seven are Democrats. The other three are Republicans. All of them are together in this, though. 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 United States litigation interest, a cost that also would be borne by Congress itself. Although we proudly 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. This is signed by Seth B. Waxman, on behalf of himself, Walter Dellinger, Drew Days--three Democrats--Kenneth Starr, Charles Fried, and Robert H. Bork, all Republicans, and Archibald Cox, of course, a Democrat--four Democrats and three Republicans. That speaks for itself. I hope it puts to bed this phony red herring argument that has been lodged by the other side. It is phony, wrong, and should not be given the time of day. I call on the media to start being responsible with regard to these matters.

Mr. HATCH. I will, without losing my right to the floor.