Orrin Hatch

Mr. HATCH

Mr. HATCH. Let me yield first to the distinguished Senator from Alabama and then I will be happy to yield to my friend from Nevada without losing my right to the floor.

Mr. HATCH. Based upon the past history of this body, he deserves a vote. He is not getting it right now because of a filibuster for the first time in history. I have to say I decry that. That is not fair. It is a double standard. It is not right.

Mr. HATCH. Well, in essence, because he was basically accused of not being Hispanic enough. I believe he was accused of being Hispanic in name only. They even said he didn't give back enough to the community, even though this man worked his guts out to get to where he is as a Hispanic lawyer in this country and deserves credit for it, and he is an idol and will be an idol to a lot of young people who want to do the same.

Mr. HATCH. The Senator really raises the issue--that is why there is a double standard--when all of these great Supreme Court Justices and others never had a day of judicial experience. I will submit Miguel Estrada has had more time in the judiciary than any of them had before they came to the court because not only has he argued before the Supreme Court, he was a clerk at the Supreme Court. He knows how the Court works. He knows how it moves, thinks, and breathes. Yet he is being mistreated here. Why the double standard? I can only think of one, and that is, they don't like what they think his philosophy is. They don't like the fact that a Republican President has supported him and has nominated him. They don't like the fact that he is a Hispanic conservative Republican. They are afraid that because he is a Hispanic conservative Republican, he might upset the balance on this court. And on this court, over 90 percent of the cases are unanimously decided. I can tell you, all of their fears are unjustified. They are incredible the way they are being made. And they are, most importantly, unfair criticisms--most importantly, unfair. That is what bothers me. Why can't we be fair to this Hispanic nominee who has fought so hard to be part of the American dream and has earned a right? Why can't we be fair to him? What is wrong over here? What is wrong? Not only is he a Hispanic nominee, a Republican, appointed by this President, whom I can see some of my colleagues don't like. I can accept that. But Miguel Estrada is a person who suffers from a handicap as well. He has a speech impediment. And if you watched the hearings, you could see that. Yet this young man has gone to the height of the profession in spite of those things. In spite of all the blocks, all the barriers, all the glass ceilings, all of the criticisms, he has lived the American dream. He is an example to every young lawyer, not just Hispanic young lawyers--especially to them--but every young lawyer of how you can fulfill the American dream. I haven't seen a glove laid on him by the other side. Yet they are still filibustering him. Why the double standard? I think the Senator makes a tremendous set of points there. I am personally grateful for his participation.

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

Mr. HATCH. You asked me why this is different from--wait, let me just finish.

Mr. HATCH. I am happy to have the question from my dear colleague from New York. No. 1, I didn't know she was Hispanic. That is irrelevant to me anyway. I didn't know that. And if she is, I didn't know it until today. No. 2, I did read her judicial records. She was an activist. I did vote against her. But there is a difference here: I voted. I allowed you to have a vote. We had a vote, and she is now sitting on the court.

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

Mr. HATCH. All giants of the law and none of whom had prior judicial experience.

Mr. HATCH. Yes.

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. Without losing my right to the floor.

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. Let me just finish here. You asked me why should this be any different from Miguel Estrada. There is nobody who can say that Miguel Estrada would legislate from the bench. There is nobody who has one ounce of information that would indicate he would be an activist judge. He isn't a judge. In fact, your side has argued that because he doesn't have judicial experience, he should not go on this position-- some have argued. I hope it hasn't been the distinguished Senator from New York with his great knowledge of the law. But there was a complete difference. The bottom line is this: Yes, I still think I was right on that particular vote. I may have been wrong, but I believed I was right. I did it sincerely. But she did have a vote. And she did pass, as I recall. She is now sitting as a judge. And I didn't hold her up, nor did I filibuster her, nor did I stand on this floor and say she should not have a chance for a vote, which is what your side--I should say, the Democrat side in this Chamber--is doing. I think there is a lot of difference, a world of difference, between my vote which was cast sincerely. I have hardly voted against any judges since I have been here. I have been one of the strongest supporters of the Federal judiciary, if not the strongest supporter in this Chamber, ever since I have been here. I can say this: I still believe my vote was right. If it was wrong, I apologize, but I didn't hold her up. I didn't filibuster her. I made sure she had a vote. And she got one, and she sits on the court today. I can't ask a question, I guess, of the Senator, but I will just ask him to think it through. There is really a difference between Rosemary Barkett's handling and Mr. Estrada's. He is not even getting a chance for a vote. She did get her chance for a vote. I was one who helped her to get it.

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. Without losing my right to the floor.

Mr. HATCH. I am not aware of anyone. I have heard remarks on the floor by colleagues on the other side that they are concerned he may not uphold all of their believed decisions. But he has said he would uphold precedent, that he would abide by the law as enunciated by the Supreme Court, and that he would examine everything as thoroughly as he could, do the very best job he could to be fair. He has said exactly the right things you would want a circuit court nominee to say.

Mr. HATCH. I will yield in just a second. Let me finish.

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

Mr. HATCH. Well, for a Federal circuit court nominee, it would be honesty, integrity, temperament, physical capacity--or ability to work--but, in addition, an FBI report that is favorable, and an ABA rating, that isn't necessarily followed but, nonetheless, is helpful if it is favorable. And in this case it is not only favorable, but it is the highest rating they could possibly give. And there are other legitimate considerations, but all of them he has passed.

Mr. HATCH. Not really. Not really. Not really, other than some who relied on Mr. Bender's comments. And I might add that Mr. Bender worked for Seth Waxman, who rebutted what Mr. Bender said, and put his reputation on the line as a Democrat former Solicitor General, and speaks very favorably on all of those issues with regard to Mr. Estrada. I would certainly give much more credibility to Mr. Waxman than I would to Mr. Bender, who I think has acted reprehensibly under the circumstances.

Mr. HATCH. There have been some who have been concerned about that because of Mr. Bender's comments. But Mr. Bender, when he was his supervisor at the Department of Justice, gave him rave reviews in all categories. Now, I think the contemporaneous rave reviews, which Mr. Bender tries to get out of now, should take precedence over his partisan comments made long after the fact.

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

Mr. HATCH. Not one. Nobody could. We know how bright he is.

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