Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the committee amendments be adopted en bloc and that the motion to reconsider be laid on the table.

Mr. HATCH. Mr. President, I am delighted that we are considering S. 151, the PROTECT Act of 2003. Senator Leahy and I introduced this bill last May following the Supreme Court's decision in Ashcroft v. Free Speech Coalition, a ruling that made child pornography prosecutions immeasurably more difficult. This problem is intolerable and demands our immediate attention. Because we could not get this bill to the President's desk last year, it has been my top priority this year. I want to begin by thanking Senator Leahy and his staff for working so diligently with me in writing the PROTECT Act during the past ten months. While we have not seen eye to eye on every provision, we have agreed about most of them. We still have some honestly held disagreements, but that is hardly unusual when people talk about the First Amendment. Senator Leahy's valuable input and insights helped to make this a better bill. I very much hope that he is as proud of the final result as I am. Mr. President, Congress has long recognized that child pornography produces three distinct and lasting harms to our children. First, child pornography whets the appetites of pedophiles and prompts them to act out their perverse sexual fantasies on real children. Second, child pornography is a tool used by pedophiles to break down the inhibitions of children. Third, child pornography creates an immeasurable and indelible harm on the children who are abused to manufacture it. It goes without saying that we have a compelling interest in protecting our children from harm. The PROTECT Act strikes a necessary balance between this goal and the First Amendment. First--and most significantly--the bill plugs a gaping loophole that exists in current law. Following the Supreme Court's decision last April, child pornographers can evade even legitimate prosecutions by falsely claiming that their sexually explicit materials did not depict real children. This frivolous argument is made possible by the growth of technology. Computer imaging technology has become so sophisticated that even experts often cannot say with absolute certainty that an image is real or a ``virtual'' computer creation. The PROTECT Act therefore permits a prosecution to proceed when the child pornography involves life-like computer images of real kids. The bill balances this provision by creating a new and powerful affirmative defense. In virtually every prosecution for child pornography, the PROTECT Act affords the accused a complete defense to liability upon a showing that the child pornography did not involve an actual minor. In creating this new balance, the bill responds directly to the concerns expressed by the Supreme Court in the Free Speech Coalition decision. Second, the PROTECT Act creates three brand new offenses that are designed to target some particular problems that stem from child pornography. One provision prohibits the use of child pornography to entice a minor to participate in sexual activity or some other crime. Another prohibits offers to buy, sell or trade either obscene or actual child pornography. The third creates a new offense for obscene child pornography that will be punished more severely than ordinary obscenity. Third, the PROTECT Act expands the record keeping requirements in existing law that apply to those who decide to produce sexually explicit materials. Section 7 of the bill expands the scope of materials covered to reflect the computerized manner in which they are increasingly being distributed and sold. Producers of such sexually explicit materials must make and maintain records confirming that no actual minors were involved in the making of the sexually explicit materials. In light of the difficulty experts face in determining an actor's true age and identity just by viewing the material itself, maintaining these records is vital to ensuring that only adults appear in such productions. Fourth, in recognition of the enormous breadth and scope of the problem, the PROTECT Act broadens enforcement efforts in order to create a more level playing field. Section 9 of the bill provides extra-territorial jurisdiction over those foreign producers of child pornography who transport, or intend to transport, such materials to the United States. Because this is one area of the law where we can truly benefit from more vigorous enforcement, section 14 of the bill directs the Department of Justice to appoint 25 additional attorneys dedicated to enforcing child pornography laws, and section 11 creates a new civil action for those aggrieved by such violations. The PROTECT Act also toughens existing penalties for offenders. Not only does it broaden the category of repeat offenders subject to more stringent criminal sentences, but it also calls on the U.S. Sentencing Commission to review the appalling low sentences that currently apply to offenders who travel across state lines in order to have sex with children. Finally, the PROTECT Act contains new provisions to refine and enhance the government's existing authority to tackle child sex crimes. Section 15 adds a number of child crimes into the section of Title 18 that authorizes the government to apply for wiretaps. Without this new provision, the government could not seek a wiretap to investigate cases where, for example, children are being forced to engaging in sex for money. Section 16 updates the type of information the government can obtain from telephone companies with an administrative subpoena in, among other things, an investigation involving the sexual exploitation of children. Other sections of the bill, moreover, enhance the ability of internet service providers to report instances when they spot child pornography, and authorize the release of that information to state and local officials for prosecution. The PROTECT Act has been carefully drafted to avoid constitutional concern. I wish it could be stronger. But because of the Supreme Court decisions, we have had to draft it the way we have. From the beginning, I have worked very hard to digest the relevant legal issues and to make the PROTECT Act square with the law as articulated by the Supreme Court. This bill has gone through more than a dozen rounds of edits since we began drafting it in April 2002. The issues are complex, and we have meticulously gone over every word and phase numerous times in order to write a carefully tailored law that will withstand judicial review. I am confident that we have done just that. The end result of all of our hard work is a bill that we can all be proud of: One that is tough on pedophiles and child pornographers in a measured and constitutional way. Congress has consistently acted in a bipartisan manner to address the harms of child pornography. I am pleased to report that we are doing so again with the PROTECT Act. This has been a bipartisan effort from the beginning, and it remains a bipartisan effort today. I respect my colleagues on the other side for being willing to work with us to fashion this bill in a constitutionally sound form. We expect the overwhelming support of Members on both sides of the aisle, and, quite frankly, our Nation's children deserve no less. Mr. President, I ask unanimous consent that the Congressional Budget Office cost estimate for the PROTECT Act, S. 151, be printed in the Record.

Mr. HATCH

Mr. HATCH. Let's take a closer look at another one of the Democrats' alleged examples. William Rehnquist, the current Chief Justice, during his hearings to be Associate Justice, refused to reveal the private advice he had given to other Justice Department officials while he was Assistant Attorney General for Legal Counsel. He stated: [I]nsofar as I may have been asked for advice in the process of making administration policy decisions upon which the administration has not taken a public position, there, I think, the lawyer-client privilege very definitely obtains. By the way, he was confirmed as a Justice on the Supreme Court. Furthermore, on November 5, 1971, the Attorney General specifically refused to waive the attorney-client privilege after a Senator asked him to do so, stating: I can well appreciate your personal, intense interest in probing into all aspects of Mr. Rehnquist's work while at the Department of Justice. I am sure you appreciate, however, that it is essential to the fulfillment of my duties and obligations that I have the candid advice and opinions of all members of the Department. Further, I am sure you realize that if I should consent to your request or other requests to inquire into the basis and background of advice and opinions that I receive from the members of my staff, it would be difficult to obtain the necessary free exchange of ideas and thoughts so essential to the proper and judicious discharge of my duties. The Rehnquist example is irrelevant for the additional reason that none of the information sought related to amicus, certiorari, and appeal recommendations. Indeed, Chief Justice Rehnquist never served in the Solicitor General's Office. Let's look at a third example that my Democratic friends claim justifies the release of confidential Solicitor General Office memos-- Benjamin Civiletti. During his 1979 confirmation hearings to be Attorney General--and I was there in the Senate Judiciary Committee at the time--the Senate did not request materials that he had prepared previously as a Department of Justice official. Rather, it simply sought assurances that Civiletti would cooperate with the Senate's oversight of the Justice Department in the future. Mr. Civiletti never specified which documents he would be willing to turn over or which documents would be privileged. During his 1978 hearings to be Deputy Attorney General, the Senate obtained documents related to allegations that Mr. Civiletti had interfered with an investigation of an alleged kickback scheme involving Members of Congress. The documents related to specific charges of misconduct. Unlike during Mr. Civiletti's confirmation, there have been no allegations that Mr. Estrada engaged in any improper behavior or otherwise failed to discharge his duties. As I recall it, Mr. Civiletti was not found to be wanting in that area either. None of the Civiletti materials were amicus, certiorari, or appeal recommendations. Indeed, Mr. Civiletti never served in the Solicitor General's Office. Now let's turn to Brad Reynolds. The Senate sought and received materials in the course of pursuing specific allegations that Mr. Reynolds, while Assistant Attorney General for Civil Rights, failed to enforce the Voting Rights Act and the Civil Rights Act. As with Mr. Civiletti, the Department's disclosure was limited to specific cases of alleged misconduct. There have been no allegations that Mr. Estrada engaged in any improper behavior or failed to discharge his duties while working at the Solicitor General's Office. Significantly, although Mr. Reynolds had previously served as assistant to the Solicitor General, and it was a very-hard fought confirmation, the Senate never suggested that his appeal, certiorari, or amicus recommendations should be divulged--never. Nobody would have stooped to that level at the time. Another alleged example that our friends have brought up is Jeffrey Holmstead. In 2001, the Senate requested 41 files that Mr. Holmstead created during his service as Associate Counsel to the first President Bush. The White House declined. After Mr. Holmstead's hearing, the Senate, based on its particularized concerns about one specific subject, requested documents related only to that matter. Because of the specificity of the Senate's concerns, the White House accommodated the committee by permitting review of documents related to that one subject matter while expressly preserving all privileges. Mr. Holmstead is no precedent for the current set of sweeping requests for every appeal, certiorari, or amicus recommendation that Estrada prepared during his years in the Solicitor General's Office. The criticism that Miguel Estrada is refusing to provide the Senate with insight into his personal views does create a double standard. My Democratic colleagues did not require nominees of President Clinton to answer questions of this sort. In fact, many Clinton circuit court nominees refused to answer such questions. President Clinton's appeals court nominees routinely testified as to their judicial approach without discussing specific issues or cases that could come before them as a judge. A few examples illustrate the point. Each of the nominees I am talking about was confirmed to one of the circuit courts of appeals. First we have Merrick Garland. In the nomination of Merrick Garland to the DC Circuit, Senator Specter asked him: Do you favor, as a personal matter, capital punishment? Judge Garland replied only that he would follow Supreme Court precedent: This is really a matter of settled law now. The Court has held that capital punishment is constitutional and lower courts are to follow that rule. Senator Specter also asked him about his views of the independent counsel statute's constitutionality, and Judge Garland responded: Well, that, too, the Supreme Court in Morrison v. Olsen upheld as constitutional, and, of course, I would follow that ruling. Another example is Judith Rogers. In the hearings on Judge Rogers' nomination to the DC Circuit, she was asked by Senator Cohen about the debate over the evolving Constitution. Judge Rogers responded: My obligation as an appellate judge is to apply precedent. Some of the debates which I have heard and to which I think you may be alluding are interesting, but as an appellate judge, my obligation is to apply precedent. And so the interpretations of the Constitution by the U.S. Supreme Court would be binding on me. My gosh, where is that any different from Miguel Estrada's answers? They are the same. Why the double standard? Why are we now demanding of Miguel Estrada something we didn't demand of the Clinton nominees? She then was asked how she would rule in the absence of precedent and responded this way: When I was getting my master's in judicial process at the University of Virginia Law School, one of the points emphasized was the growth of our common law system based on the English common law judge system. And my opinions, I think if you look at them, reflect that where I am presented with a question of first impression, that I look to the language of whatever provision we are addressing, that I look to the interpretations of other State courts, and it may be necessary, as well, to look to the interpretations suggested by commentators. And within that framework, which I consider to be a discipline, that I would reach a view in a case of first impression. Where is that different from Miguel Estrada's answers? Miguel Estrada answered basically the same way. Judge Rogers also was asked her view of mandatory minimums and stated: I am aware, Senator, of some of the debate on the pros and cons, and certainly before I was a judge I was engaged in comment on them. But as a judge, I have been dealing with them strictly from the point of view of legal challenges to them. I have sat on a case where a mandatory minimum sentence was challenged, and we upheld it. Finally, she was asked her view of the three-strikes law and stated: As an appellate judge, my obligation is to enforce the laws that Congress passes or, where I am now, that the District of Columbia Council passes. Why is there a different standard for Miguel Estrada? Those are the same answers, basically, that Miguel Estrada gave to these similar types of questions. Let's take another example: Kim Wardlaw. In the hearing on Judge Wardlaw's nomination to the Ninth Circuit, she was asked about the constitutionality of affirmative action. She stated, in an answer similar to Miguel Estrada's answer to the same question: The Supreme Court has held that racial classifications are unconstitutional unless they are narrowly tailored to meet a compelling governmental interest. Why is there a double standard with regard to this Hispanic nominee when it was not utilized against these other nominees? These answers were perfectly all right and acceptable for these other nominees. Now let's turn to Marsha Berzon and Robert Katzmann. In a hearing on their nominations to the Ninth and Second Circuits, Senator Smith asked each whether legislation to prohibit partial-birth abortion was unconstitutional. Judge Katzmann responded as follows: I would say that that is an issue that--Senator--that is a very important issue, and that as a judge, I would really have to evaluate that issue in the context of a law that is actually passed, and then in terms of a case or controversy. In terms of adjudication, there are restrictions on judges rendering advisory opinions on particular pieces of legislation in the advance of passage. And then even after passage, I think what a judge has to do is to evaluate the case in the context of a real case or controversy. Judge Berzon responded with the following: And I essentially agree with that answer. . . . .It would obviously be inappropriate to say anything further on that precisely because the issue might come before a court on which Mr. Katzmann or I could be sitting. Why the double standard? Why aren't the answers Mr. Miguel Estrada gave given the same credibility as the answers of these two Clinton judges? Why is there a double standard? Why is he being treated differently? I have heard countless colleagues get up over here and complain and moan and groan and try to come up with excuses for their vote against Miguel Estrada and for their filibustering for the first time in history a Hispanic judge, the first ever nominated to the Circuit Court of Appeals for the District of Columbia. I have heard a lot of complaining. But there has not been one statement of substance. Why is he being treated differently? Why should a Hispanic judicial nominee be treated differently than all these other non-Hispanic judges? It seems to me that he ought to be treated similarly, afforded respect. This is a man who has fulfilled the American dream as an example to countless Hispanic young people that you can make it in this society. But can a Hispanic who is deemed to be not only a Republican but a conservative--can that type of Hispanic make it? Well, I sure hope so. Now, back to this Berzon and Katzmann matter, I interrupted Senator Smith's questioning on partial-birth abortion and noted to Senator Smith: Well, Senator, if I could interrupt, you have asked some very appropriate and good questions. . . Both of them have said, in my opinion that they are not sure how they would decide the case, and that they wouldn't want to give the opinion that they have now without hearing all the facts and evidence. . . . But they both say that that could likely come before them and that they are going to have to decide it at that time. Now, those two Clinton judicial nominees, Judge Berzon and Judge Katzmann. Some might say that they provided nonanswers to important questions they were asked. But I think they provided legitimate answers for the important reason that those questions might come before them someday in the event of their confirmation. Why should Miguel Estrada be treated any differently by my colleagues on their side when I personally counseled one senator on my side that the answers of these Clinton judges were sufficient? They were appropriate answers that they gave because they shouldn't have been talking about cases that could possibly come before them. Let me go to Judge Maryanne Trump Barry. I am now talking about circuit judges who made it through the system without any of this rig marole that has surrounded trying to defeat Miguel Estrada. In the hearing on Judge Barry's nomination to the Third Circuit, Senator Smith asked whether ``an unborn child at any stage of pregnancy is a human being.'' Senator Smith is not an attorney. But anybody on the committee can ask any question they want to ask. He asked whether ``an unborn child at any stage of pregnancy is a human being.'' That was a loaded question--no question about it. Judge Barry responded: Casey is the law that I would look at. If I had a personal opinion--and I am not suggesting that I do--it is irrelevant because I must look to the law which binds me. My goodness. Why is Miguel Estrada being treated differently than Judge Barry, or any of these other circuit court of appeals judges who were not Hispanic? Why is he being treated differently? Why isn't he accorded the same respect? Why is he expected to do more? Why is it that it is tough for him? Why is it that my friends on the other side of the aisle who claim to be for civil rights and who claim to be for equal rights and who claim to be helpers to minorities are treating this man this way? I hope everybody in America is asking that question--because I don't think they can answer it. I have to say that a lot of political things are done for political reasons. We are fighting for a Hispanic nominee to the circuit court of appeals. And you saw virtually every Republican in the Chamber last night fighting for Miguel Estrada. Where were the Democrats? Backbiting, raising false issues, raising lousy issues, raising I think sometimes immature issues, raising irrelevant issues, raising red-herring issues, treating him totally different from the way they wanted their caucasian nominees to be treated. Why is this different? Is it because Mr. Estrada is Hispanic? I don't believe that. I don't believe my colleagues are prejudiced against Hispanics. But I believe they don't want a Republican Hispanic to serve on the Circuit Court of Appeals for the District of Columbia no matter who is President, but especially when there is a Republican President. I don't think you can conclude anything else. After watching these proceedings and after listening to these statements, where is one point of substance against that nominee? In all of this debate, where is it? It isn't there. Why do they think his answers are insufficient when they are virtually identical to their non-Hispanic nominees' answers? Is it because they are trying to do a better job for the judiciary than the Republicans were trying to do? I don't think so--no better than this Republican was trying to do, I will tell you that. I was in a position to do a lot. How about Raymond Fisher? In the hearing on Judge Raymond Fisher's nomination to the Ninth Circuit, Senator Sessions asked about Judge Fisher's own personal views on whether the death penalty was constitutional. He had a right to do that. But Judge Fisher also had a right to respond. He responded: My view, Senator, is that, as you indicated, the Supreme Court has ruled that the death penalty is constitutional. As a lower appellate court judge, that is the law that I am governed by. I don't want in my judicial career, should I be fortunate enough to have one, to inject my personal opinions into whether or not to follow the law. I believe that the precedent of the Supreme Court is binding and that is what my function is. That is exactly, in essence, the language that Miguel Estrada used. Yet he is being criticized. Why? Is it because, as some of the Hispanic Caucus in the House said, he is just not Hispanic enough; or that he hasn't done enough for the Hispanic community? What more can a young man do than to rise to the top of his profession as a Hispanic and as an example to every young Hispanic in this country--man and woman? They are telling us what a Hispanic has to do to be accepted by the Democratic Hispanic Caucus in the House which is so partisan that they are undermining the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia. I think they should be ashamed. As for Congressman Menendez asking me for an apology--is he kidding? I think the apology is owed to the whole Hispanic community by the Democrat Hispanic Caucus over in the House which is undermining every Hispanic judicial nominee in the future, if they are saying--if they did, if I recall it correctly--because he has no judicial experience he should not have the privilege of sitting on the Circuit Court of Appeals for the District of Columbia. I have previously gone through more than two dozen Clinton nominees who had no prior judicial experience and who are now sitting on the circuit court of appeals. In the joint hearing on Judge Fisher and Judge Barry, Senator Smith asked whether the nominees would have believed that there was a constitutional right to abortion without the Roe v. Wade precedent. This is very similar to questions that Senator Schumer of New York asked certain nominees. But I interrupted Senator Smith to say--to my own colleague on my own side, one of my close friends in the Senate--as chairman, I said: ``That is not a fair question to these two nominees because regardless of what happened pre-1973, they have to abide by what has happened post-1973 and the current precedents that the Supreme Court has.'' Think about that. I basically told my own colleague that he was out of line in asking that question, even though he had a right to do it. Everybody knows I am pro-life. Nobody doubts that. I have stood up for that, and I will always stand up for it because it is the right thing to do. It is the moral, upright thing to do as well. To have 39 million abortions in this society and millions more around the world primarily because of Roe v. Wade is something that every American ought to be analyzing and asking, What is going on here? When we find that so many on the other side of the aisle support even partial-birth abortion where a full-of-life baby capable of being born outside of the mother's womb and living is basically killed by a doctor by ramming scissors into the back of its skull before that baby is pulled out so they can suck the brains out--and then say that is not a human being? I don't see how anybody can stand up with that kind of barbaric practice, but it has been done. Every time I think of one of these judges and how well we treated them and how fairly we treated them, and then I see the contrast of how they are treating Miguel Estrada, I want the American people to know this. This is pure bunk on their side. Where is the substance? Why would they be filibustering for the first time in history and establishing this dangerous precedent where both sides can require 60 votes for anybody to become a judge in this country? And the Presidents will no longer control this process. Presidents will have to succumb to the almighty Senate if that becomes the rule. That is what they are playing with over there. It is unbelievable. Presidents will no longer control the nomination process in any respect. They will have to do whatever the Senate says. I cannot think of a worse thing that could happen to this country, because the judiciary is one-third of the separated federal powers in this country. My gosh, let me go to Richard Tallman, since we are going through to show how they treated their nominees a lot differently than they are treating this Hispanic nominee. I hope every Hispanic in this country is listening because it affects every Hispanic in the country, Democrat, Independent, and Republican. Richard Tallman. In followup questions to his hearing on his nomination to the Ninth Circuit, Senator Smith asked Judge Tallman whether ``there are any questions that you feel are off limits for a Senator to ask?'' Judge Tallman's response: A Senator may ask any question he or she wishes. Judicial nominees are limited by judicial ethical considerations from answering any question in a manner that would call for an ``advisory opinion'' as the courts have defined that or that in effect would ask a nominee to suggest how he or she would rule on an issue that could foreseeably require his or her attention in a future case or controversy after confirmation. Senator Smith also asked Judge Tallman several questions regarding how he would have decided certain Supreme Court cases, including Brown v. Board of Education and Roe v. Wade. Judge Tallman's answer to the Roe question was as follows. His answer to the other question was the same: It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and the supporting legal authorities that were applicable at that time. I would note that the Supreme Court has since modified Roe v. Wade, in Planned Parenthood v. Casey. Look, that is an answer no different than the answers for which they are criticizing Miguel Estrada. Why is that? Why is it they are not being fair to this Hispanic nominee? Why is it they do not care about fairness? Why is it they are not being fair to the nominees of the President of the United States? Why is it they are not observing the Senate practice of not filibustering nominees to the Federal courts of this country? Why is it Miguel Estrada's answers, which were basically the same as these answers, are considered nonanswers when these were considered substantive answers? Why is there a double standard? I do not understand this. Why is there a double standard? I got off on this because of the comments of the distinguished Senator from Iowa that I have set a double standard. I defy him to show where I have, because I have been fair. Again, I will repeat, the all- time confirmation champion was Ronald Reagan, with 382 confirmed Federal judges. That was amazing. Everybody thought that was amazing. Democrats have been mad ever since, that we could have confirmed 382 Reagan nominees to the Federal bench, almost all of whom have served with distinction in the best interest of this country, working with Democrat judges as well. Reagan had 6 years of a Republican Senate to help him get those 382 through. President Clinton got virtually the same number, and he had 6 years of an opposition party in control of the Senate. He did not have 6 years of his own party helping him. He actually had 6 years of an opposition party. I was chairman, and he got virtually the same number--astounding. He was treated fairly. And for anybody to walk on this floor and criticize me because we were unable to get through some of the judges at the end of the session is disingenuous. There were much fewer left over at the end of President Clinton's tenure than there were at the end of Bush 1. We did not complain that there were 54 judges left over at the end of Bush 1 and, in essence, only 42 left over at the end of Clinton. But I do bitterly resent anybody coming in here and saying I had a double standard, when I worked so hard, and had to overrule a number of my colleagues--not a big number, but a small number of colleagues--who wanted, yes, some of them wanted to filibuster, and I helped to overrule that. And they all realize today why they should have never even contemplated that. And this has helped to bring it into even greater focus. I am calling on my colleagues on the other side to bring it into focus and realize this is dangerous stuff they are playing with here. It is dangerous. It could cost this country and all future Presidents control of the nominations process. Now, they do not control it completely. We have an obligation, too. Our obligation is to advise and consent. Now, advise and consent does not mean advise and filibuster. It does not mean advise and obstruct. It does not mean advise and help some people but treat others with a different standard, like Miguel Estrada is being treated here. It does not mean that. And advise and consent does not mean advise and filibuster, to go back to that point. If they succeed in this, they will have established, I believe, an unconstitutional precedent I am not sure we can get rid of afterwards. And I believe you are talking about upwards of 60 votes needed for every future judge of any quality and, I have to say, taking away a great deal of the President's power to nominate these judges, to select these judges, because no President would be able to have the right to select judges, not without the absolute blessing of the Senators. It is almost that bad now anyway. Well, Mr. President, I think I have more than made a case that there is a double standard here. I think I have more than made the case that a lot of these Democrat judges have been treated differently from the way Miguel Estrada is being treated, and that is even not considering the filibuster. When you consider the filibuster, that is like throwing nuclear waste all over the judiciary process, because that really is going to cause problems around here like we have never even dreamed of before. It is inadvisable, it is wrong, it is constitutionally unsound. And it is a travesty. And it is--to use a very important word--unfair, unfair to Miguel Estrada, unfair to the President, who has nominated him, unfair to this process, unfair to Republicans on this side who treated Clinton judges fairly and well. It is unfair to our procedures around here. With that, I yield the floor.

Mr. HATCH. I will be happy to yield at any time to them. Mr. President, before I came to the floor, I understand the distinguished Senator from Iowa criticized me for having a double standard. If I recall correctly, he said, I believe, I should look in the mirror when I talk about double standards. Also, during last night's debate, several of my Democratic colleagues attacked my record on moving Clinton nominees. I heard some of these attacks repeated this morning by the Senators from California. This surprised me and it very much disappointed me since I worked hard to get not only Judge Paez but also Marsha Berzon, now Judge Berzon, confirmed, despite the opposition to their nominations, and there was serious opposition. That is one reason it took so long for Judge Paez, and there were some very serious allegations. But I was able to fight through those, and I can guarantee this body that neither of those judges would have gone through had it not been for my work. I might add, neither would have a whole bunch of the 377 Clinton judges who did get through--the second highest total of confirmed judges in the history of the country--had it not been for what I was trying to do to help my colleagues on the other side. I understand my dear friend from Iowa is very bitter about what happened to one of his judicial nominees. I do not blame him for that. He has always been a friend. I am disappointed that he would attack me on the floor and accuse me of a double standard because he knows better, and if he does not know better, he ought to know better. I was unable to get his nominee through for a variety of reasons. I do not want to go into them here. I feel badly because of that. I personally liked his nominee, but there were things I was able to do as chairman and there were things I was unable to do. The one point nobody can rebut is that President Clinton was treated very fairly in getting the second highest total of Federal judges through in the history of the country of any President. President Reagan got 382 judges through, 5 more than President Clinton. With regard to those 382 judges, President Reagan had 6 years of a Republican--his own party--Senate to help him. President Clinton had 6 years of the Republican Party in charge of the Judiciary Committee, and I was chairman during those 6 years. I think he would be the first to say that I helped him, or he would be a baldfaced liar. I know he is not that. So I would presume that he would be willing to admit, as a decent honorable person, that Senator Hatch worked closely with him in trying to get those 377 judges through. Unfortunately, I was not able to get some through some nominees about which some of my colleagues on the other side of the aisle feel very bitter. I apologize to them. I feel badly about that because there are things I could do and things I just could not do. There were a lot of things people did not think I could do that I did do. I am not perfect any more than anybody else, but I can say this: I do not think any other Senator could have gotten done what I got done with regard to fairness for the Clinton nominees. In contrast, I do not think what is happening to President Bush's nominees is fair at all. In fact, here we are in a filibuster for the first time in history against a Hispanic judge who has risen to the top of his profession, even though he has a disability. That bothers me a lot, to be honest with you. I did work hard to get Judge Paez and Judge Berzon through and confirmed, despite the opposition to their nominations, which opposition was not without merit. There were some legitimate concerns on the part of some of the Senators on this side of the floor. The fact remains that I lobbied for cloture on those two nominees, and they were afforded an up-or-down vote, something Miguel Estrada is not being afforded. They were afforded an up-or-down vote as a result of my efforts. They were both confirmed and both sit today on the Ninth Circuit Court of Appeals, a very prestigious circuit court. Let me say this. I will stay here all day and all night, if I have to, to defend my record on Clinton judges because it is very unfair for anybody who looks at the record to say I personally did not treat him well. With regard to my friend from Iowa, I am disappointed he would attack me on the floor of the Senate, but I will say to him, I understand his feelings, his very deep feelings, and he felt very bitter that his nominee did not get through, a personal friend and somebody whom I personally liked. With my Democratic friends complaining so vociferously about the Republican treatment of Clinton nominees, which is totally unjustified, in my opinion, it leads me to believe that this shabby treatment of Miguel Estrada is driven in large part by a Democratic goal of retribution. That is all we heard last night in the questions from the Democratic side: Why didn't you do this? Why didn't you do that? If that is the way we play the game, my gosh, I can give 100 cases where this side ought to have some retribution against them. I, frankly, do not believe in that. Call it tit for tat if you want to, call it payback, call it what you will, but I, for one, am becoming more and more convinced with each Democrat who takes the floor to complain about the Republican treatment of Clinton nominees that their opposition to Miguel Estrada is more about revenge than it is about Mr. Estrada. That bothers me a lot, to be frank. Mr. President, I also understand the distinguished Senator from Iowa said that people who know Mr. Estrada have called him a right-wing kook. I do not know anybody who has called him a right-wing kook, not anybody on the face of the Earth. The only persons who would do that are those who act irresponsibly, and I have not even heard any irresponsible people do that. So there is little or no reason for anybody on the floor of this Senate to demean Miguel Estrada, and that is what this debate has devolved to, and it bothers me. I caution my colleague from Iowa to respect other people. We all make mistakes, and we all say things that perhaps we should not say, and I will treat it that way this one time. But I do not want ever again to hear anybody on this floor call Miguel Estrada a right-wing kook or any other nomination by President Bush, any more than we should have called some of the far-left judges who were nominated by President Clinton left-wing kooks. We never did that, or at least I do not ever recall doing that. I certainly did not, and I do not recall anybody else doing it on our side. I just wonder who those mystery people are who called Mr. Estrada a right-wing kook. The only person I know of who has gone on record saying anything negative about Mr. Estrada, out of all the persons who have worked with him, is Mr. Bender, who has been more than, I think, rebutted, both in committee and on this floor, by his own performance reviews of Miguel Estrada that could not have been more glowing. And then when he has a chance to say something nasty because Miguel Estrada is now nominated to the circuit court of appeals, he chooses to do so. It is beneath the dignity of a law professor to do that, especially after giving those glowing performance reviews, even though he says everybody got those. Everybody knows that is not true. If it is true, then it is a sad commentary for our Government. But then again, even though he admits everybody got those glowing performance reviews, he claims the reason for that is because these are the best lawyers in the country. Reading between the lines of his letter, that is what he basically said. That is as much as saying Miguel Estrada is one of the best lawyers in the country. How can he be so inconsistent? He is the only one I know, and even he, as low as his comments are, did not call Miguel Estrada a ``right- wing kook.'' He has no credibility. I am just sorry in some ways for the law students who have to take his classes. I would prefer law professors--I do not care if they are liberal or conservative. Most of them are liberal, but I would prefer them to be honest people. I prefer them to have some dignity about their comments. I prefer them to be decent people teaching our young adults. It is a pathetic thing that almost every law school in this country has a whole raft of left-wing professors who, if they had to, probably could not make a living at the practice of law. Maybe they could make a living, but they could not stand the rigors and the difficulties of practicing law. It is a lot easier to teach two classes a week and pontificate from their high perches as liberal law professors to the detriment of some of these law students. It is a pathetic thing. Anybody who has gone to law school knows how far left an awful lot of those professors are. Are they bad people because they are far left? No. Some of them are terrific teachers and terrific people. Most of them are honest, which is something I cannot say for Mr. Bender with the way he has approached this thing. I remind my friend from Iowa that we have a standard in the Senate against relying on anonymous allegations, even though I have seen people on that side bring up anonymous allegations where Mr. Estrada could not even confront those making the allegations. That is just hitting below the belt. Senator Biden made it clear that should never happen, and yet it has happened in this Chamber and it has happened in committee. I, for one, am fed up with that kind of inappropriate behavior by Senators. It is beneath the dignity of these Senators to do something like that. Senator Biden's policy was: if they are not willing to face the person they are accusing, then they are not worthy of being listened to. I agree with him, and I intend to stick to that very same policy. I am going to forget these derogatory comments by the distinguished Senator from Iowa. I have never held a grudge. It is one of my weaknesses as a Senator. I just plain cannot hold a grudge against my colleagues. I have had some of my colleagues come up to me and say, boy, you ought to have a grudge against that guy. I just cannot do it. Personally, I love everybody in this body. And I think everybody knows that. It is against everything I believe to hold a grudge. So I am not going to do that and I am going to forget what was said today, but I do not want it ever said again. Nor do I want to have some stupid staffer putting words in the mouth of another Senator. That happens every once in a while. We should not allow staffers, no matter how bright they are or how stupid they are, to cause us to do things that are inappropriate on the floor of the Senate and to make accusations that are not justified against somebody who worked his guts out to try and help President Clinton get his judges through, because I believe the President of the United States has a right to have his judges voted on up or down. I have made that clear throughout my tenure as chairman, and everybody knows it. I have had countless Democrat Senators say they know I am not responsible for some of the problems that happened. Then again how many are responsible over on my side, because 377 Clinton judges went through? We were the opposition party putting them through. And they are complaining? We are in the second month of a brand new session of Congress and we cannot even get the first circuit court of appeals nominee, the first Hispanic nominated to the Circuit Court of Appeals for the District of Columbia, we cannot even get him a vote up or down because for the first time in history a true filibuster is being conducted against this Hispanic nominee. Now, that is a real double standard, not the one the distinguished Senator from Iowa is talking about. People get emotional sometimes. I may be a little bit myself right now. I think I am somewhat justified under the circumstances, and I make allowances for that. I hope my colleagues will make allowances for me right now. I keep hearing that Miguel Estrada has no record. That is a slander. And for those who have written it, it is a libel. The Judiciary Committee has confirmed numerous Clinton court nominees who, like Miguel Estrada, had no prior judicial experience. What a ridiculous argument, that a person should not be on the bench because he has no prior judicial experience. Where would all those Clinton judges be? They would not be on the bench today if we had that as a rule, and neither would many of the top Supreme Court Justices in history, including Thurgood Marshall, whom nobody in this body would be against today--bless his departed soul. He, of course, had no prior judicial experience when he was nominated to the federal appellate bench. A number of Clinton nominees worked in the Justice Department or other branches of the Federal Government, like Miguel Estrada, but Senate Democrats made no demands for their internal memoranda or privileged work product and, I might add, neither did we Republicans. We did not make those demands. We knew that would be a red herring to slow down the nominee. We know this is a fishing expedition, and nobody in their right mind who understands government, who understands the separation of powers, who understands privilege, and who understands the right of the Solicitor General's Office to keep its own memoranda of recommendations on appeals, on certiorari, and on amicus briefs confidential would make this demand. It is one of the most ridiculous assertions I have seen, and yet that is the basis on which they are hanging this filibuster. There is nobody in any administration who would allow the Senate to muddle around and make public and politicize legal memoranda and recommendations, in those three areas at least--in other areas as well, but especially those three areas--appeal, certiorari, and amicus curiae recommendations. Democrats are saying Miguel Estrada has no judicial experience, and therefore he should not be on the bench. What about Merrick Garland? I personally pushed Merrick Garland through. There were those who did not want to push him through, but before the end they all realized he was an exceptional man, a very good person, no more than Miguel Estrada is, but pretty darn exceptional, and he still is. He is a good judge. He was confirmed as a judge for the DC Circuit in 1997. He had never been a judge before. He had held several positions in the Department of Justice. Like Mr. Estrada, he was a partner in a prestigious DC law firm. But did anyone seek confidential memoranda from his time at the Justice Department? Absolutely not. We would not have stooped that low. To use it as a red herring so they could justify a filibuster, that is even stooping lower. William Bryson is another one who was confirmed as a judge on the Federal Circuit in 1994. He had never been a judge. He held several positions at the Department of Justice and was an associate at a prestigious firm in town. Senate Democrats never asked for the confidential memoranda he wrote during his time at Justice. The list goes on. Blane Michael was confirmed as a judge on the Fourth Circuit in 1993, his first judgeship, never having been a judge before. Why is it that he can be a judge and we should work to get him on the bench but Miguel Estrada should not be a judge because he had no prior judicial experience? Well, neither did Blane Michael, but he is sitting on the Fourth Circuit Court of Appeals, his first judgeship. He had been a Federal district court clerk and served as a Federal prosecutor in New York and West Virginia before becoming a partner in a law firm. He had virtually no published writings, just like Miguel Estrada. Again, however, no one tried to gain his confidential privileged memoranda from his time as a Federal prosecutor before confirming him, and we would not. Arthur Gajarsa was confirmed to the Federal Circuit in 1997. He was a clerk to a Federal district judge, then worked as an in-house counsel at an insurance company and later as a special counsel at the Department of Interior before joining a law firm. Did Democrats demand his internal memoranda? After all, he, like everyone else mentioned, had never been a judge. But, no, he was confirmed like the rest without anyone reviewing his confidential work product. Then there is Eric Clay, confirmed to the Sixth Circuit in 1997. He never had been a judge before. He was a law clerk to a Federal district court judge, and worked in a law firm. What did we know about him that we do not know about Mr. Estrada? Absolutely nothing. We did not seek his confidential memoranda. We confirmed him anyway. We did what was right. Another was John Kelly, whom we confirmed for the Eighth Circuit in 1998, yet another Clinton nominee to the circuit court who had never been a judge. He had worked in the Office of General Counsel for the Secretary of the Air Force before going into private practice. But Republicans never sought his internal memoranda, and he had very few published writings. What about Sid Thomas? He was confirmed to the Ninth Circuit Court of Appeals in 1996 and had never been a judge. In fact, he had not even had a clerkship. He also had very few published writings. Democrats, however, did not cry out about his lack of a record. The entire transcript of his hearings takes up less than 2 pages in the Record. Why is it that he was treated differently than Miguel Estrada? I suspect it is because we gave President Clinton's nominees the benefit of the doubt in almost all cases. But this crew on the other side is not giving this President the same fair treatment that we gave to President Clinton. I could go on and on but I think I made the case. Democrats opposing Miguel Estrada consistently failed to seek internal memoranda for Clinton nominees who had no prior judicial experience and little in the way of publications. The Democrats' claim that they have to do so now for Miguel Estrada simply does not hold water. Now, naturally, I guess they wouldn't want to get internal memoranda to use against their own president's nominees. They wouldn't want to go on a fishing expedition that might hurt their own nominees, but neither did we. Now why are we using this red herring to justify a filibuster against one of the finest nominees I have seen in 27 years on the Senate Judiciary Committee--Miguel Estrada? Let me address, once again, the Democrat demand to hold Mr. Estrada's nomination hostage for confidential internal memoranda. The Department of Justice historically has not disclosed confidential, deliberative documents from career lawyers in the Solicitor General's Office in connection with a judicial nomination. The Senate historically has not even asked the Department to do so. My Democratic colleagues are creating a new double standard that applies only to the nomination of Miguel Estrada. A double standard, why is that? I ask the people out there who are watching C-SPAN, why is it that all of a sudden they are asking for all these things from the only Hispanic nominee in the history of the Circuit Court of Appeals for the District of Columbia? I think everyone out there must know by now. I don't think I even have to spell it out, but maybe I should spell it out a little bit. Every living former Solicitor General has denounced the Democrats' demands. Every one of them, four of whom are eminent Democrat former Solicitors General. I have said this before but I think it is worth repeating. That letter was signed by Democrats Seth Waxman, Clinton's Solicitor General; Walter Dellinger, one of Clinton's top people in the White House; Drew Days, and Archibald Cox; and by Republicans Ken Starr, Charles Fried, and Robert Bork. All seven have said, in essence, that this is ridiculous, that the Justice Department should not turn over confidential recommendations on appeals, certiorari petitions, and amicus curiae petitions. The Solicitors General explained that the frank exchange of ideas on which their office depends ``simply cannot take place if attorneys have reason to fear their private recommendations are not private at all but vulnerable to public disclosure.'' The letter concludes that: [A]ny attempt to intrude into the Office's highly privileged deliberations would come at a cost of the Solicitor General's ability to defend vigorously the United States' litigation interests--a cost that also would be borne by Congress itself. Now, longstanding historical practice confirms that deliberative memoranda are off limits during confirmation hearings. Since the Carter administration, the Senate has confirmed former Justice Department employees--even those with no prior judicial experience, as I have already explained--without demanding to see their confidential memoranda. It should not adopt a new double standard for Mr. Estrada's nomination. Since 1997, the Senate has approved 67 appellate nominees who previously worked at the Justice Department, including 38 with no prior judicial experience. The Department did not disclose deliberative memoranda for any of those nominations. In fact, the Senate did not even request such documents. Seven of the 67 were in the same position as Mr. Estrada. They had worked for the Solicitor General and had not been judges previously. These seven nominees were nominated by Presidents of both parties and were confirmed by Senates controlled by both parties. Again, the Justice Department did not disclose deliberative memoranda in any of these nominations. The Senate did not even request such a disclosure for good reason, because we knew it was improper. None of the so-called disclosures cited by the Democrats are precedent for the sweeping demands they are making regarding Mr. Estrada. In fact, only two of their purported ``precedents'' have even involved lawyers who worked in the Solicitor General's Office. And the Democrats' examples did not involve turning over what the then-chairman of the committee, Senator Leahy of Vermont, demanded--amicus, certiorari, and appeal recommendations. Let me address some of the specific examples my Democratic colleagues have represented as pressing for their demand. One is Frank Easterbrook, who is a judge on the Seventh Circuit. The Democrats' mere possession of a single memoranda, a 2-page amicus recommendation that Mr. Easterbrook wrote as an Assistant to the Solicitor General, does not suggest that the Justice Department waived any privileges or authorized it to be disclosed. The official record of the Easterbrook confirmation hearing contains no references to this document. After comprehensively reviewing its files, the Justice Department concluded that it never authorized the release of the documents. It was probably leaked by some Democrat in the Justice Department. That makes it wrong. Yet it is being used as an example on the floor. Last fall I sent a letter to Senator Schumer, then to Senator Leahy, specifically asking for information about how the Democrats obtained this memorandum. To this day I have received absolutely no response to my question. I think there is good reason for that--because the document should never have been leaked to begin with. This single document provides no precedent for the Democrats' sweeping request for every document Mr. Estrada ever prepared, which is what they have asked. Mr. President, I ask unanimous consent that the letters I wrote to Senator Schumer of New York and Senator Leahy of Vermont, inquiring about the source of the Easterbrook memos, be printed in the Record.

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

Mr. HATCH. On the appropriations bill.

Mr. HATCH

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

Mr. HATCH. The Senator is exactly right. It just goes to prove how ridiculous the accusations are that some have made against Miguel Estrada. And it also goes to show that there is a double standard with regard to this Hispanic nominee.

Mr. HATCH. There is no question. I agree with the distinguished Senator from Texas. That is what is going on here, and they are depriving this qualified Hispanic of his right to sit on this bench without any real justification. That is what bothers me. It is a double standard. It is clearly a double standard, and it is a double standard that is unseemly. I think the Senator put it exactly right. Two of our Hispanic Republican colleagues in the House have come over here to show their support for Mr. Estrada, Mr. Mario Diaz-Balart and Mr. Devin Nunes.

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

Mr. HATCH. I thank my colleague for asking that question because everybody knows, including my friends on the other side, that I argued vociferously against the few who wanted to filibuster on our side. I expect my colleagues in good faith to argue on their side against that. It is a dangerous thing to do. It is a wretched thing to do, filibuster a judge. It is the first time in history. If they want to filibuster some judges, why would they pick on the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia, a man who suffers from a disability yet rose to the top of his profession. He came up the hard way. He fulfilled the American dream, a man who is an example to every young Hispanic person in this country, and to me. He is an example to me, and I think everybody in this body. Why wouldn't we let this fellow have an up-or-down vote like we always did? We always made sure that, regardless of the reason for a cloture vote, we made sure that cloture was invoked and a vote up or down occurred. I have to say, I think there is an element of unfairness here that I have not seen in my 27 years in the Senate. It is a shame that it is happening against the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia, who has not had a glove laid on him. And because they can't find anything wrong, they want to go on fishing expeditions long after they held their hearing, and then try to justify this holdup and this filibuster for those reasons. It is unbelievable to me. Look, I made this point before and I am going to make it one more time and I hope everybody in America watches this. The Senate Democrats held a retreat. They can't deny this. It has been reported thoroughly. They were given suggestions by at least two very liberal law professors. Once President Bush became elected, these law professors, wanting to promote only their ideology, suggested that, No. 1, bottle up the nominees in committee. If we have a filibuster tomorrow, they are fulfilling that part of their suggestions of mass obstruction. We have a filibuster now here on the floor, but I will get to that. Then they said: If you can't bottle them up in committee, then inject ideology into the confirmation process, and that is exactly what has happened. Some of the Senators on the other side have demanded to know the ideology of the nominees, as if that is relevant. And every nominee, and especially Miguel Estrada, if you read his answers to questions, has said we will abide by prior precedent. We will observe the principle of stare decisis. We will rule in accordance with the law and with the rule of law. So there is no reason to inject ideology because they said they would put their own personal beliefs aside. Miguel Estrada said that on numerous occasions in response to questions by the Democrats. If they can't win on injecting ideology, and we are seeing that at every step of the way here now, then seek all unpublished opinions. I will never forget Dennis Shedd. He was chief of staff to Senator Thurmond on this committee, one of the nicest people we have ever had work on this committee. I would compare him to Ron Klain, two really nice guys, two really smart guys, two really decent people, two wonderful attorneys. Ron Klain was Al Gore's top aide, and at the time I believe he worked on the Judiciary Committee. I can't remember which Senator he worked for at the time, but he went throughout the whole campaign with Al Gore. He was one of his top advisers. He is one of the top lawyers in this city and he is a personal friend. I admire him. But when they couldn't get Judge Shedd in any other way, they requested all his unpublished opinions. He has been serving for over 10 years. Where are those unpublished opinions? Published opinions are where the judge writes an opinion and it becomes published and printed in some law book. Unpublished opinions are stored in repositories. To get 10 years of unpublished opinions took thousands and thousands of hours, an estimated $75,000. They had to go to Atlanta, as I recall, to do this, all for the purposes of a fishing expedition, hoping to find just something to hang on Dennis Shedd, who is a well-respected Federal district court judge. That is the kind of crap they had to go through. I understand one of these professors at that infamous retreat will be here tomorrow to speak to the Democrats and possibly continue to misguide them. Then they said if bottling him up in committee doesn't fully work--of course it will work for a while, which we may see tomorrow if they filibuster these judges, inserting ideology into the confirmation process. If that doesn't work then, if they are judges, seek all unpublished opinions and see if you can find something to pin on them to defeat them. If that doesn't work, then do this: Seek privileged internal memoranda, which they are trying to do in this case without one ounce of justification, to try and get into the actual memoranda written by Miguel Estrada in his job, in his duty as an Assistant Solicitor in the United States Solicitor General's Office, in three areas: his recommendations on appeal, his recommendations on certiaria, and his recommendations on amicus curae matters. Never in the history of the Justice Department has the Solicitor General's Office ever been willing to give up those privileged documents; and they shouldn't. It is the phoniest, most unjustified request that I have seen in a long time, and I have seen a lot of phony, unjustified requests. If all of that doesn't work--if bottling up doesn't work, injecting ideology, seeking all unpublished opinions, and if you can't get privileged, unpublished memoranda, then these law professors said to filibuster--for the first time in the history of the country, filibuster. That is what we are going through right now. Isn't it a crime--well, maybe that is too harsh. Isn't it a shame and even despicable that they are filibustering the first Hispanic nominee for the Circuit Court of Appeals for the District of Columbia who has lived the American dream, who has the highest rating possible unanimously--and it is their gold standard--of the American Bar Association. It is absolutely amazing that we are going through this. We have now been doing it for over a week. You would think this is a Supreme Court nominee. Of course, that is part of this. The whole purpose of giving Miguel Estrada a rough time is to say, Mr. Estrada, we don't want your kind on the Supreme Court. That is really what the bottom line is here. That is why these professors are doing that--because this President has nominated some of the greatest lawyers in the history of the country on the circuit court of appeals. And every one of them has to be considered ultimately for the Supreme Court. But this is a shot across the bow right now--that you had better darned well conform to a particular ideology or you are just not going to make it. I hope our colleagues, those with clear minds and fair attitudes, will prevail on that side, as we had to prevail on this side against filibustering. If they don't, ``Katie bar the door,'' because I am not sure I will be around next time to stop the filibusters--not to say that I am all that important. But the fact is, I did stop them the last time. There were only a few who wanted to do that. The vast majority of the Republicans said that would be awful, and I think the vast majority of Democrats ought to say the same. I think they ought to wake up and realize what they are doing. It is wrong. It is not fair to this President. I admit many of them do not like this President, but he is the President. It is unfair to the Judiciary Committee who voted this man out of committee. It is unfair to the process, which has always had an up-or-down vote once the person has been brought up on the floor. It is unfair to Miguel Estrada. I think I have said all that I care to say this evening. I yield the floor.

Mr. HATCH. I agree, justice delayed is justice denied, and this is a very important court. The problem is our friends on the other side just do not want a conservative Hispanic appointed by a Republican President on that court.

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

Mr. HATCH. A simple majority. It says we have the power of advising and consenting. It does not say we have the power to advise and filibuster or obstruct, which is what is going on here.

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

Mr. HATCH. He did, indeed, and he received rave reviews for his work at the Solicitor General's Office in the Clinton administration by a Democrat Solicitor General.

Mr. HATCH. No way. Nobody has ever called those a filibuster and there has never been a true filibuster against a circuit court of appeals nominee until this one, and your side has announced that this is a filibuster. No one has ever agreed that those others were filibusters. There were cloture votes, no question about it. But no circuit nominee has ever been defeated by denying cloture, none; zero; nada.

Mr. HATCH. Of course not. Because we had a full day of hearings. Mr. Roberts was there, Mr. Sutton was there, Justice Cook was there. We went from 9:30 that morning to 9:30 at night, and I was prepared to stay all night if I had to. Any Senator could have come and asked any questions they wanted. Many Senators asked all the questions they wanted to at that time. Afterwards we kept the record open for Senators to read and review the record and submit any written questions that they wanted. We have had 2 weeks to do that. There comes a time when you have to say let's treat these people fairly. I know there is no reason in the world to hold up Mr. Roberts or the other two either. The fact that my colleagues spend all their time--not all their time but enough of their time interrogating Mr. Sutton, they still interrogated Mr. Roberts and Justice Cook. I think we should proceed and I think it is fair to proceed. I think the Senator said it right when he said he is a distinguished appellate lawyer, one of the best in the history of the country. I don't see any reason for the delays in these matters. I was open, as I have always been, to any questions that the Senators from the other side wanted to ask. We stayed there for a very lengthy hearing. Look, fair is fair. Let's treat these people fairly. I hope my colleagues will not filibuster tomorrow because that will be the first time I recall a filibuster in the committee. If that is so, then it is clear that we have the politics of mass obstruction-- which politics were suggested by two very ultraliberal law professors at a Democrat retreat in 2001. If that is true, then this is all part of the game, to slow down everything in the judiciary no matter how many emergencies we have, and we have plenty, and to stop President Bush from having his judges confirmed. I don't think it is fair. I don't think anybody else who watches it thinks it is fair. I call upon my good friends to be fair. I have to say, I like everybody in this body. I care for everybody in this body. I care for my friend from New York and he knows it. I know he cares for me. But it is time to wrap it up and say, look, you have had your shot. And knowing you, you always take your shot. I should not be talking to you personally, I acknowledge to the Chair. My friend from New York is not known for shyness, but he is known as a fair person and he is known as a good lawyer, at least by me. I am asking him to help be a leader on that committee. I am asking the distinguished Senator from New York and others to be leaders on this committee, to help us do our job, to help fill these courts. Yes, you may not like him. My colleagues on the other side might not like the nominees of President Bush any more than we liked the nominees of President Clinton. But I put them through. Like I say, President Clinton, he would have been the all-time champion in confirmation had it not been for Democratic holds on your side. So I think we were fair. I would like you to be fair to our people. If there are no further questions, I would like to make a statement.

Mr. HATCH. I cannot answer that other than to say I wish we could have. He was not named for the 11th seat on the Circuit Court of Appeals for the District of Columbia, in contrast to Mr. Estrada who was nominated for the ninth seat. There is a real difference because there was a question whether the 11th and 12th seats at that time should have been filled. But the ninth seat certainly should be filled, and everyone I know agrees with that, including people on the Democrat side. I wish I could have gotten them all through, to be honest. To also be honest, I don't know of an end of session where any Judiciary Committee has been able to get them all through. Frankly, I think you can go back in time and find more nominees left hanging when the Democrats controlled the committee at the end of the first Bush administration than we left at the end of the Clinton administration. You could go through all the statistics and criticize all you want and some criticisms are justified. I wish we could have done a better job back then when I was on the Judiciary Committee. I give an illustration. Tomorrow we have a markup on three circuit court of appeals nominees. Some have indicated the Democrats will filibuster the markup. One person on that markup is Mr. Roberts, who has been sitting there for 11 years. Mr. Paez sat there for 4 years, but he got a vote and he is now sitting on the Ninth Circuit Court of Appeals. Mr. Roberts has been sitting there for 11 years and has had three nominations by two different Presidents and is considered one of the two greatest appellate lawyers in the country by Supreme Court Justices and many others. There is not anything you can find against him other than he is appointed by President Bush, a Republican President, and he may be conservative. I don't know whether he is or is not, but he has been held up for 11 years through three nominations. I have been informed that there may be a filibuster in committee tomorrow. That would be the first filibuster that I have seen in my 27 years on the Judiciary Committee. If that is true--I cannot believe it is true. I believe my colleagues would allow votes and allow them to come to the floor in an orderly fashion. I have to say that I hope that is not true. If that is true, then I think any reasonable person can conclude that my colleagues on the other side are not willing to do their constitutional duty to fill the courts with the President's nominees. I will stay here all night and debate my record with the Senator from New York or anyone else, but this has nothing to do with the----

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

Mr. HATCH. Absolutely none. And that is one reason it is a fishing expedition--because they want to see if they can find something for which they can criticize him. But not only did they wait 615 days to hold a hearing--which they controlled, they chaired, they questioned-- but they also allowed for written questions afterwards. And only two of them--the Senator from Illinois and the Senator from Massachusetts-- prepared written questions for him, which he answered, which we put into the Record today. Frankly, I do not know of anyone who could point out any defect in this man's character and his ability to be a great circuit court of appeals judge.

Mr. HATCH. I will stay all night to debate my record in comparison to any Democratic record. That has nothing to do with whether or not Miguel Estrada should be confirmed. The only thing that has to do with is whether we vote. And I think it would be very unfair not to vote up or down on Miguel Estrada.

Mr. HATCH. To further answer that question, I would like to read from the letter the White House just sent up here today: In some recent hearings, including Mr. Estrada's, Senator Schumer has asked that nominees identify particular Supreme Court cases of the last few decades---- I think the correct reference was to the last 40 years, although I have heard Senator after Senator on the other side talk about the whole jurisprudence of the country, even though the question is referring to the last 40 years. But: In some recent hearings, including Mr. Estrada's, Senator Schumer has asked that nominees identify particular Supreme Court cases of the last few decades with which they disagree. But the problems with such a question and answer were well stated by Justice Stephen Breyer. Of course, Justice Breyer is a Democrat, and he is now sitting on the Supreme Court. The White House letter goes on: As Justice Breyer put it, ``Until [an issue] comes up, I don't really think it through with the depth that it would require . . . so often, when you decide a matter for real, in a court or elsewhere, it turns out to be very different after you've become informed and think it through for real than what you would have said at a cocktail party answering a question.'' Senator Schumer also has asked nominees how they would have ruled in particular Supreme Court cases. Again, a double standard is being applied. The nominees of President Clinton did not answer such questions. For example, Richard Tallman, a nominee with no prior judicial service who now serves on the Ninth Circuit, not only would not answer how he would have ruled as a judge in Roe v. Wade--but even how he would have ruled in Plessy v. Ferguson, the infamous case that upheld the discredited and shameful ``separate but equal'' doctrine. So, too, in the hearing on President Clinton's nomination of Judges Barry and Fisher, Senator Smith asked whether the nominees would have voted for a constitutional right to abortion before Roe v. Wade. Chairman Hatch interrupted Senator Smith to say ``that is not a fair question to these two nominees because regardless of what happened pre-1973, they have to abide by what has happened post-1973 and the current precedents that the Supreme Court has.'' In other words, I corrected a member of my party on the committee for asking that question of a Clinton nominee. I hate to say it, but Miguel Estrada has answered their questions. He just hasn't answered them the way they wanted because they haven't been able to find any real defects in the answers he has given.

Mr. HATCH. I am answering a question.

Mr. HATCH. I add one last thing on that. I cannot see any reason for this action against Miguel Estrada unless, of course, the opposition to Mr. Estrada, based upon what I have been hearing tonight, is really retribution for perceived past wrongs perpetrated against Clinton nominees when I was, in fact, one of the best assets you had in getting nominees through. I took a lot of criticism from the conservative right who I told to get lost, I have to say, in contrast to what I think is the liberal left who seem to have lockjaw control over my colleagues on the other side. I yield for a question as long as I don't lose my right to the floor.