Orrin Hatch

Mr. HATCH

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

Mr. HATCH. Yes.

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. 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. 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 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. That is right. By the way, when the ABA does its review, it is looking for every one of those qualities. It is looking for people who would rebut those qualities. It is looking for people who both support him and are opposed to him. It is looking for people who say he does not have the right temperament, or he does not have the right intelligence, or he does not have the right integrity, or he does not have the right health. The ABA goes into all of that. So does the administration. And so do we as Senators if we want to. In this particular case, virtually everybody who worked with him gives him high raves.

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. 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. Without losing my right to the floor.

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

Mr. HATCH. For a question.

Mr. HATCH. There is no question that this is setting a precedent. In response to my colleague's very important question, this is a very terrible precedent because if the Democrats succeed in filibustering the first Hispanic judge nominee to the Circuit Court of Appeals of the District of Columbia--the first filibuster in the history of the country, a true filibuster, then Katy bar the door. I remember there were some on our side who wanted to filibuster, and cooler minds took over and said, We are not going to do that. First of all, we think it is wrong. Second, we think it is unconstitutional to do it. Third, it isn't fair to the President, to the Senate, to the nominee, nor to the process. It isn't fair. And that is the position we took. And now we have what I consider to be a very unfair process, for no good reason, because I have not heard one substantive argument against Miguel Estrada, not one in all of this debate, other than: We didn't like his answers. Well, that is tough. Vote against him if you don't like his answers. That is your right. Some of our people voted against some of their judges because they did not like their answers. That is OK. It is honorable. But do not filibuster a circuit court of appeals nominee or a Federal judge of any stature.

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

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

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

Mr. HATCH. That was my experience with the Clinton administration. I don't know of any rightwing ideolog----

Mr. HATCH. I certainly agree with that. Mr. Waxman, who is a highly regarded and respected lawyer, was the Solicitor General--one of them. Mr. Estrada worked under three Democrat Solicitors General who saw his work product. Mr. Waxman is highly respected. I doubt he would put his reputation on the line, as he did, by vouching for Mr. Estrada if he were not absolutely convinced he would be a fair and unbiased Federal judge. That is none other than Seth Waxman, the Solicitor General in the Clinton administration. I don't understand all this argument by the other side and why a filibuster of this highly qualified person who has the highest rating of the American Bar Association, their gold standard. I have to say I have to admit it is a good standard at this point, too. They are doing a fair job. It isn't just because of Mr. Estrada I say that. I have been saying it for a couple of years. But one time I wasn't very pleased with it.

Mr. HATCH. Yes, Paul Bender has. But he----

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. 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. I suspect that is what is worrying people on the other side.

Mr. HATCH. My colleagues on the other side who don't know Miguel Estrada--there is only one person who has given their criticism, and that was Professor Bender from Arizona State University who I think has more than been rebutted here on the floor.

Mr. HATCH. Could I take a moment to read a few paragraphs from the White House letter responding to the Senate Democrats' continuing action here on the notion that Mr. Estrada did not answer questions of the Members? When asked by Senator Edwards about judicial review, Mr. Estrada answered: Courts take the laws that have been passed by you and give you the benefit of understanding that you take the same oath that they do to uphold the Constitution. And, therefore, they take the laws with the presumption that they are constitutional. It is the affirmative burden of the plaintiff to show that you have gone beyond your oath. If they come into court, then it is appropriate for courts to undertake to listen to the legal arguments, which is that the legislature went beyond its role as a legislature and invaded the Constitution. That is a deliberative and very important answer to questions they claim he never answered.