Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President----

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

Mr. HATCH. Of course, Senator Leahy put that in the Record I believe on February 25. Let me answer. This is a letter to Senator Thurmond.

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. 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. 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. 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. 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 am. Many editorials are complaining and pointing out that this is terrible politics. It is a terrible thing to do. It is a double standard. You quoted the Freeport Journal-Standard. Let me quote one paragraph: If there is one example today of the worst in American politics, it is the decision by Senate Democrats to filibuster the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia. President Bush's description of the move as ``shameful politics'' is generous. It is a downright repugnant abuse of the Constitution. The rest of the editorial is good as well. I ask unanimous consent that it be printed in the Record.

Mr. HATCH. Yes, without losing my right to the floor.

Mr. HATCH. Not just yet. You mentioned the Chicago Sun-Times. My staff just gave me that. You know, it is interesting--I will quote a couple lines. Who can look at the spectacle of the 108th Congress and not believe that justice and the basic operation of the Nation is being sacrificed on the altar of ugly obstructionist, partisan politics? That is the Chicago Sun-Times, which is not known as a conservative newspaper, to my knowledge. Let me give one other. I am quoting a couple sentences. I will put the whole editorial into the Record, if I can. I ask unanimous consent that this be printed in the Record.

Mr. HATCH. ``Our legal system could not and cannot be held hostage to the political nitpicking''--which is exactly what is going on here. I admit that my distinguished colleague from Illinois did take the time to submit questions. None of the others did, except Senator Kennedy. All of them are complaining that he didn't answer the questions. I will say that my friend and colleague from Illinois did take the time to submit written questions. He deserves credit for that. But as far as I know, I don't believe he asked any questions at the hearing.

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

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

Mr. HATCH. I will, 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. My recollection is that he was not at the hearing and he didn't ask any questions. He and every Democrat had a right to do it, and it went all day long. Yet the Senator seems to be trying to give the impression that he knows everything that went on at the hearings. True, he could have read the transcript, but he had every chance to ask questions. Why wasn't he there? Why didn't he ask the questions? Why is he in the Chamber criticizing Miguel Estrada and criticizing the process and using this phony excuse with regard to the confidential, privileged memoranda of the Justice Department along with his colleagues? I don't blame any one person. They are all to blame for using these kinds of phony arguments. I think the media is to blame--some of them. I have 57 different editorials, 50 of which are for Mr. Estrada.

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

Mr. HATCH. I do not see how any colleague could remain unconvinced of that. He will be. He will follow the law. He has said he will follow the law. He said he would uphold precedent. He said he would do what is right regardless of his own personal beliefs. That is all you can ask of any of these nominees. And he has answered those questions absolutely accurately, the way the Clinton nominees answered those questions. Why--again, might I ask--is there a double standard with regard to this Hispanic nominee? Why is there? I cannot see any reason for it.

Mr. HATCH. There is no way they would have, no way in this world. In fact, there are plenty of Democrats, and I might add, partisan Democrats, who do not act in a partisan way--and neither do the Republicans--on that standing committee. In fact, if I recall it correctly, there are more Democrats on the committee than Republicans. And they all unanimously gave Miguel Estrada the highest rating that the American Bar Association can possibly give. Keep in mind, my colleagues on the other side of the floor said that the American Bar Association rating is the gold standard, it is the thing that makes the difference as to why they will vote for people. And ``qualified'' is normally enough to vote for anybody. Here is a man who has been rated unanimously ``well qualified'' by both Democrats and Republicans on the standing committee, who I think are doing a good job on that committee. I have been critical of the committee in the past, but I think during the last few years of the Clinton administration, and up to today, that they have been doing a good job.

Mr. HATCH. The one I have is a letter to Senator Thurmond. I also have attached to that two letters to Senator Biden. I have a number of letters here. I understand all of these letters the distinguished ranking member of the committee has put in the Record. I point out to the distinguished Senator from Nevada that all of these letters are from the Office of Legal Counsel, not the Solicitor General's Office. They refer to--