Orrin Hatch

Mr. HATCH

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. Without losing my right to the floor.

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. Without losing my right to the floor.

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

Mr. HATCH. No question about it. They were given the right to submit additional written questions, and only two Senators did. By the way, the administration has even gone further than that. They said: Look, we will present Miguel Estrada to any Democrat Senator who wants to ask him questions in their personal office on a personal basis. They have gone to great lengths for this wonderful nominee. Why is it--I ask my distinguished friend and all others who are listening--that this Hispanic nominee is being given the business like he is? Why is it that we have this double standard? It is one of the most difficult things for me to see. It is one of the most difficult things to understand.

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

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

Mr. HATCH. He answered the questions. Now, he may not have answered them the way some of my colleagues wanted him to. It was apparent they were trying to get him ensnarled. It reminds me of the Biblical days when the pharisees would try to ensnarl Jesus Christ. They would ask these questions, trying to ensnarl Him and make Him look ridiculous in front of the people. It was almost that bad in committee. He answered every question. Unfortunately, for them, he answered them precisely the way most Democrat nominees did; and that is, instead of going into how he would rule on matters that would come before him later in the court, he basically said: I will obey the law. I will sustain the law. I will follow the law regardless of my own personal views. That is what the Democrat nominees have said. And that is a correct answer. And it is a very good answer. His answers were more literate, more scholarly, more persuasive, in many of the questions that were asked than I have seen in most nominees. Again, I ask, why the double standard in this case? Why don't we recognize how great this young man is and allow him the same privileges that we have given to countless Democrats during the Clinton years when we confirmed 377 Clinton nominees to the Federal court--the second all- time highest confirmation rate in history, only 5 below the highest, and that was Ronald Reagan, who had 382?

Mr. HATCH. Absolutely. The tactic is to demand documents that they know the administration cannot give because the precedent would be so earthshaking because these are privileged documents, and then filibustering and claiming they are filibustering because they can't get the documents. And when they don't get them--it is just typical of what they have been doing--they flaunt what really is proper procedure. Then they have not only asked for documents but his record, Miguel Estrada's recommendations while at the Solicitor General's Office for appeals, certiorari matters, and amicus curiae matters. Never in the history of this country has anyone given those documents out of the executive branch to the Senate or to anybody else. And they should not, because it would deter and affect and, in many respects, destroy the work of the Solicitor General, the attorney for the people of this country.

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

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

Mr. HATCH. Absolutely. Not only did they hold one of the longest hearings in history for a circuit court appeals nominee--conducted by them, which they said was fair, where they had the privilege of asking every question they wanted or even extending the hearings if they did not believe they got answers to those questions--but afterwards they had a right to submit written questions. And, by the way, only two people did, the distinguished Senator from Illinois and the distinguished Senator from Massachusetts, Mr. Durbin and Mr. Kennedy. By the way, I do not believe Senator Durbin was even there during the hearings to ask questions. And yet I have seen, time after time, the distinguished Senator from Illinois take the floor and talk about the nonanswers that were supposedly given. I refer all of my colleagues to the speech made earlier by the distinguished Senator from Tennessee Senator Alexander. He blew that contention that Miguel Estrada did not answer these questions into oblivion. I recommend everybody in this country read that speech because he actually showed the A-plus answers that Miguel Estrada gave to Democrat and Republican questions. And they were thorough. They were answers that would make anybody proud. They were answers that any judicial nominee would be proud to do. And, frankly, he answered them better than almost any judicial nominees I have seen in the last 27 years.

Mr. HATCH. That is correct.

Mr. HATCH. Not a true filibuster. There have been cloture votes as a Senate management device but not a true filibuster. There has never been a true filibuster used against a circuit court of appeals nominee, no, and certainly not against a circuit court of appeals nominee to the Circuit Court of Appeals for the District of Columbia.

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

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

Mr. HATCH. I have never been more concerned. We are in danger of actually breaking the system. We are in danger of doing lasting harm to the Senate, its procedures, and to the President of the United States, and to the judiciary; to the executive branch because, if this filibuster goes through, that means that on controversial nominees--and my colleagues on the other side treated all of the Bush circuit court nominees as controversial--that means you have to have 60 votes. That would apply to both sides of the floor should they get the Presidency. It is a very dangerous thing and something we just definitely should not allow to come to fruition.

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

Mr. HATCH. I do not recall anyone who has had this difficulty--in fact, anyone with that type of a rating who has not gone through the Senate once reported by the Judiciary Committee, and the fact that the Democrats are doing this now is outrageous.

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

Mr. HATCH. Of course not. Few lawyers have. Few nominees for judgeships have in the history of this country. That is what makes me so livid--to see lesser legal minds writing partisan letters suggesting he is not a qualified nominee. It drives me nuts, to be honest with you. Few lawyers in America have argued 1 case before the Supreme Court, let alone 15. By the way, Miguel Estrada has a handicap. He has a disability. He has a speech impediment. Yet he has risen to the top of the legal profession in appellate advocacy and oral advocacy with a speech impediment. Nobody can match that.

Mr. HATCH. No. How could it be?