Orrin Hatch

Mr. HATCH

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

Mr. HATCH. That is true. All seven living Solicitor Generals--four Democrats, three Republicans--oppose this request. The Democrats are Archibald Cox, Seth Waxman, Drew Days, and Walter Dellinger. The Republicans are Charles Fried, Robert Bork, and Ken Starr. I might add that both the Washington Post and the Wall Street Journal oppose the demand for these memos. There is good reason for that. When the Democrats requested the memos, they requested his recommendations on appeals, his recommendations on certiorari petitions, his recommendations on amicus curiae briefs. Never in the history of the Justice Department have those type of materials that are privileged, confidential work product materials been given to this branch of Government or any other branch. The Democrats have said there are four or five cases where the Department of Justice materials have been given. They have scoured the Justice Department; the administration and the current Justice Department have scoured those records, and they have found in all but Bob Bork there was no evidence anybody had given up those records to anybody here. If they have records, they must have been leaked by friends of the Democrats in the administration. They were not provided by the Justice Department. In the case of Bob Bork, they did give some special request memoranda, because it was up to the Supreme Court, affecting the area involving his decisions with regard to Archibald Cox. Certainly not the recommendations in writing, the confidential recommendations in writing of appeals, amicus curiae and certiorari petitions.

Mr. HATCH. That is right. They are not his to release even if he wanted to.

Mr. HATCH. Mr. President, I am happy to yield for a question without losing my right to the floor.

Mr. HATCH. If there is a greater success story, I would like to meet the person. If you were to meet Miguel Estrada, you would say this is truly a wonderful man and a great lawyer. Fourteen of his colleagues, I believe, at the Solicitor General's Office and throughout the Government, including Seth Waxman, who was Solicitor General in the Clinton administration, and I might add Ron Klain, who worked on the Judiciary Committee, was Al Gore's most faithful legal advisor, went everywhere with Al Gore, totally devoted to him, have said he would make a wonderful judge. He has the temperament and ability to do so. Only one person has issued a negative opinion, and that was Professor Paul Bender. If you read the record--I don't want to go through it again--I think that opinion should be totally discarded when you look at the facts.

Mr. HATCH. He has said that. But the Justice Department has tremendous problems. They not only consider it a matter of principle, they consider it a matter of absolute principle.

Mr. HATCH. He did. He served as an assistant to the Solicitor General and came away with virtual raves for his work. Only one person has criticized him, and we have more than made it clear that that criticism is blown away by that person's, Professor Paul Bender from Arizona State University, raving reviews of his work when he was actually there. I think we would rely on those raving reviews rather than the political statement that was made later.

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

Mr. HATCH. The Senator is absolutely correct. Miguel Estrada is a brilliant individual.

Mr. HATCH. I yield further to the distinguished Senator from New Hampshire.

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

Mr. HATCH. He came to the United States at age 17, if I recall it correctly. He had a very limited knowledge of English, taught himself English, went on to Columbia University, graduating magna cum laude, and from there went on to Harvard University, where he also graduated magna cum laude and also was editor in chief of the Harvard Law Review. Yes, he overcame a lot of problems. As I say, that is in addition to his disability that has not stopped him from reaching the heights of the legal profession.

Mr. HATCH. I would never want to characterize either as being liberal or conservative. But I think people who know can very easily characterize them.

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

Mr. HATCH. It is a good question. Miguel Estrada is a full partner in one of the great law firms of the country, Gibson, Dunn & Crutcher, at his young age. He has argued 15 cases before the Supreme Court, winning 10 of them. That is a pretty good record. By the way, I mentioned he did that suffering a disability. This man has arisen above language barriers, immigration barriers, educational barriers, legal barriers, to attain to the position he has. He has lived a Hispanic dream life. And here he is being held up on the floor of the Senate--without one good reason.

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

Mr. HATCH. First, let's understand the Democratic Hispanic Caucus. They did not allow the Republican Hispanics, the three of them in the House of Representatives, to become part of that. So it is clearly a very partisan group. We have a couple of our colleagues in the Chamber from the House of Representatives watching this very carefully, people who have spoken out for the Hispanic community. Secondly, by saying that he does not have any judicial experience, therefore, he doesn't qualify to be on the Federal bench, what does that say to every member of the Hispanic Bar Association, none of whom, really, except current judges, have any judicial experience in the sense of having been judges. It means he is saying they cannot be judges either. What kind of a representative of the Hispanic community would make that kind of a statement, if he really wants to help the Hispanic community? Or is that representative just making partisan remarks, which is what I believe he was doing? The fact is, we have confirmed 26 Clinton judges who have not had judicial experience--26. That is the phoniest argument I have heard yet, and it is a disgrace to argue it in the sense that Hispanics cannot serve on the judiciary if they have not had judicial experience. Now, let's think of one other thing. Miguel Estrada was a law clerk to Amalya Kearse, a Carter appointee, on the Second Circuit Court of Appeals. That is judicial experience. He helped write some of the opinions that she made. He was a law clerk to Anthony Kennedy on the Supreme Court of the United States of America. That is a lot more than a lot of others, than any of the 26 Clinton appointees had. So to say that he has not had judicial expedience--but even if you do not count that as judicial experience, this is a man with every qualification, and they have not laid a glove on him. It is really very unfair, and I think we ought to all stop and think about that. But I would also like to point out--I do not mean to take too long on this question, but I also would like to point out 108 men and women have served on the Supreme Court, and of the 108, 43 had no judicial experience at all. In the Court's history, 8 of the 16 Chief Justices-- most recently, Chief Justice Earl Warren--had no prior judicial experience when appointed to the Supreme Court. Of those Justices appointed in the last 50 years, Justices William Rehnquist, Lewis Powell, Jr., Abe Fortas, Arthur Goldberg, and Bryon White had no prior judicial experience when they were appointed to the U.S. Supreme Court. I know that is the phoniest argument I have heard yet.

Mr. HATCH. If I could first yield to the Senator from Kansas.

Mr. HATCH. The nominee, Miguel Estrada, worked for the Clinton administration. He worked in the Solicitor General's Office of the Justice Department in the Clinton administration. And it is highly unlikely that he would have received the support of Seth Waxman and other prominent Democrats if he were a right-wing ideologue. In fact, Seth Waxman says he is not. Now, Seth Waxman was a Democrat Solicitor General under Clinton. By the way, the seven living former Solicitors General are backing Miguel Estrada, four of whom are Democrats: Seth Waxman, Drew Days, Walter Dellinger, and Archibald Cox.

Mr. HATCH. Well, keep in mind, Miguel Estrada is a partner in the very prestigious law firm of Gibson, Dunn & Crutcher. But he got there by clerking--to get a clerk's position in a Federal court is a very high honor. To be editor of the Law Review at Harvard is one of the highest honors any law school can offer. But then he becomes a clerk to Amalya Kearse on the Second Circuit Court of Appeals, which is one of the great circuits in this country. She is a great judge. And then he later became a clerk to Justice Anthony Kennedy on the Supreme Court, and is still one of his best friends and advisers, and vice versa. And, of course, he has become a partner in one of the great law firms in this society. He has tried all kinds of cases, 15 before the Supreme Court, winning 10. When the ABA, which my friends on the other side have called the gold standard, did their thorough investigation of Miguel Estrada, they came to the conclusion he is unanimously well qualified, the highest rating the American Bar Association can give. That is in spite of all of the impediments this young man has had coming up through the ranks from Honduras to this country to college to law school to these various positions. By the way, I didn't mention he worked in the Solicitor General's Office giving very effective opinions for both the first Bush administration and the Clinton administration.

Mr. HATCH. I ask for the regular order.

Mr. HATCH

Mr. HATCH. Mr. President, I want to make one or two other points, and then I understand Senator Kyl is here and I hope he can be heard. I ask unanimous consent that he be recognized after me.

Mr. HATCH. All right. Here we are in the middle of an unprecedented filibuster. We have heard a lot of arguments and many repeated arguments. We have heard Mr. Estrada ``has not answered the Senators' questions.'' Well, he has. They asked question after question at the hearing--one that they conducted and they controlled. Any Senator who was not satisfied, and had additional questions, had the opportunity to send additional questions. Well, they did. Two Senators--only two of them--sent Mr. Estrada followup questions. Senators Durbin and Kennedy asked multiple questions. Mr. Estrada answered these, and answered them fully. Here is what is unfair. If they don't like the answers, as I have said, my Democratic colleagues have a remedy; they can vote against him. That is their right. If that is what they want to do, that is the proper exercise of their constitutional duty. But to simply deny the Senate a vote is unfair to the nominee, unfair to this body, unfair to the President, and unfair to a majority of Senators who want to vote for this man and exercise their constitutional duty under article II, section 2. This is an abuse of the debate privileges of this body. This is simply an abuse by the minority. It is nothing more than what some would call the tyranny of the minority. It is the first time in the history of this country that an appeals court nominee has been filibustered. It is a doggone shame the first Hispanic ever nominated to the Circuit Court of Appeals of the District of Columbia happens to be the nominee here. This is against our constitutional duty and against the spirit of what we are elected to do. We are supposed to advise and consent. Consent means Senators can vote against or they can vote for. It doesn't mean advise and filibuster. It doesn't mean advise and obstruct. I will say it again. The Democrats have asked their questions and they have gotten their answers. If they don't like the answers, they can vote against the nominee. But don't continue to obstruct. It is simply not fair. Mr. President, I think any fair observer who looks at the transcript of this hearing, and looks at those questions and answers, will have to admit he answered their questions. Admittedly, I suspect he did not answer them the way they wanted him to. That is, they could not dig up any dirt on him. So what are they doing now? Trying to see if, through a fishing expedition, they can find some documents where they can. That is offensive. To ask for confidential, privileged documents from the Solicitor General's Office in spite of the warning of seven former Solicitors General, four of whom are leading Democrat attorneys who vociferously say you should not do that, that would be very harmful and detrimental to the process. They have ignored those recommendations. Any fair observer who looks at these questions and answers will have to say he answered their questions, maybe not the way they wanted him to, but he answered them as a deliberative person would, and as most other nominees have answered the same type of questions. He answered them in a very intelligent, worthwhile fashion. I yield the floor.

Mr. HATCH

Mr. HATCH. Madam President, if I may ask my colleague from Massachusetts for a moment of privilege, I want to personally praise my colleague from Missouri for his maiden speech today and for the excellent job he has been doing ever since he began here. I just wish we had him on the Judiciary Committee as well because we know the great lawyer he is, and we also know about the terrific experiences he has had over in the House and also in private practice. I just want him to know how much we appreciate having him in the Senate and how proud I am of him every day. I thank my colleague from Massachusetts.

Mr. HATCH

Mr. HATCH. Mr. President, it seems to me if the Democrats are going to filibuster, they ought to give some reasons for their filibuster. They have said they are going to filibuster, for the first time in the history of this country, a Federal circuit court nominee, and the first Hispanic nominated to the Circuit Court of Appeals for the District of Columbia. Where are they? We have had all kinds of talks on foreign policy, on running down the President's financial plans, running down his foreign policy. I heard one Senator today talk about the real problem is North Korea. Of course, it is a real problem. So is Iraq. So is Osama bin Laden. These are the people who watched me in the middle of the 1990s be the first one to tell President Clinton he better get on Osama bin Laden because he is going to kill Americans. I actually was the first to bring that forth. I have been on the Senate Select Committee on Intelligence twice. They did nothing, and now they are moaning and groaning because we have inherited a problem that has existed for a long time. Because nothing was done? Now they are saying, well, we should be concerned about North Korea. Yes, we should be. We should be concerned about everything. It does not take many brains to realize a lot of the finances that come for the terrorist movement throughout the Middle East and throughout the world come from Iraq. They have supported virtually everybody. The Egyptian Islamic Jihad, that is where Al-Zawahri comes from. He is No. 2 to Osama bin Laden. That is where they have gotten a lot of their money. They support the Palestinian Islamic Jihad. They support virtually every Islamic terrorist group around. Now we are supposed to just stand back because some of the Democrats think we ought to concentrate our efforts on North Korea. Of course, we are concentrating our efforts there. The President is doing everything he should do. It is not quite the same. Those people are hemmed in by China, who they have to have just for food, and it is not in China's best interest to allow North Korea to have this kind of power and be able to irresponsibly use it. Nor is it in the interest of anybody in the Asian community, and it is certainly not in our interest. We have top people working on that and controlling it. It is hard to control wild men, and we have to really look hard to find one worse than Saddam Hussein. Saddam Hussein has used weapons of mass destruction against his own people. Imagine what he would do to us if he could. My colleagues on the other side know as much as I know about it, or at least they should, and that is before the first session of inspections, Saddam Hussein came that close to having a nuclear device. You think he is not trying to do that now, and in his country, the size of California, do you think it is hard for him to secrete his weapons of mass destruction? He can hide those in a million different ways. This is a joke. We have to fight terrorism. We have to fight these types of people on all sides. And we are. This administration is doing everything it can, and it really needs to have a little less bellyaching and a little less criticism, a little less partisanship than what we are getting sometimes around here. I heard other Senators get on this floor and say this court--to go back to Miguel Estrada--the first Hispanic nominated to the circuit court of appeals in this country who is being filibustered by people who, throughout the years, have said we would never filibuster when they had the Presidency, we would never use that type of a tactic. Here they are, using it. It is hypocritical. It is wrong. It is unfair. It is establishing a precedent that could hurt this country immeasurably. We could only have the least common denominator on the Federal courts if some on the other side got their way. To do it against the first Hispanic nominated to the Circuit Court of Appeals for the District of Columbia is particularly reprehensible, especially since he has every qualification a person needs to fulfill this responsibility. The White House and the general counsel's office have been working overtime day and night to answer all the questions these people have asked over and over that are ridiculous in nature. They have made Miguel Estrada available for any Democrat who wants to talk to him. The Democrats conducted the hearing. It was all day, which is extraordinary in and of itself. They controlled every aspect of that hearing. They asked the questions that they wanted to ask. He did not answer some of them the way they would have preferred. Then they could have defeated him for sure. That is not his job to try to please the Democrats or me or anybody else. His job is to tell the truth, which is what he did. And he had an obligation to tell the truth without saying how he would vote on any given issue, or otherwise he would have to recuse himself after he gets on the bench and be less effective. Some of the arguments we have had around here are ridiculous. The very people who are griping about getting these confidential privileged memoranda down at the Solicitor General's Office ignore the fact that of the seven former current living Solicitors General, four of them are Democrats in the Solicitor's Office. Three reviewed Miguel Estrada's memoranda. How far do we go with these ridiculous arguments, these unfair arguments, these discriminatory and prejudicial arguments, against a person who has every qualification to be on this court? There is only one reason they are fighting like this. They think Republicans are going to back down. Or that the President will back down. He will not back down. I don't think most Democrats feel the way some of the radicals over there do. There are some people with reasonable minds over there. I think most of them. I respect everyone on the other side, but I have to tell you, some of them are listening to the most radical people on their side in bringing this filibuster and going against one of the best nominees in history. I have been on the Judiciary Committee almost 30 years, 27 years now. There are very few who you would rate at the level with Miguel Estrada. Every Hispanic in this country ought to be proud of it. I am calling on every Hispanic in the country, whether Democrat, Independent, Republican, whether you are liberal, moderate or conservative, you better start calling the Democrats and let them know this is not fair, this is not right. It is abysmal. Some would say abominable. I think I would be one of those. I have seen some unfair things here from time to time, and this is a tough body, there is no question. Sometimes we do some dumb things, but I have never seen anything more unfair than what is happening here. With Senators hiding behind this, I think, phony request for documents they know they should not have a right to have and then try to represent on the floor that the few cases where somebody leaked documents to them, that were not recommendations for appeals, recommendations for amicus curiae briefs, recommendations for certiorari, none of them were, but some were leaked from the Solicitor General's Office by partisan Democrats and they have some of these. They have not seen fit to let us have copies of them, other than what they are putting in the Record. We have asked for them, but they did not have time to give them to us. The one case they can show where the Department really did give some documentation was in the case of Robert Bork. The Department produced some documents concerning Bork's firing of Archibald Cox. It was a specialty situation. But they were not documents of recommendations of employees in the Solicitor General's Office concerning appeals, concerning certiorari appeals, and concerning amicus curiae briefs. This is one of the phoniest excuses I have ever heard. Keep in mind, four of their former Solicitors General, Democrat Solicitors General, are on Miguel Estrada's side. And three of them reviewed every one of those documents. That is not good enough for them? They know the administration cannot give in to these requests because if they did, every time anybody is nominated from any part of the Justice Department they would have to get confidential memoranda. The executive branch does have some rights. I know that some on the other side do not believe that, but they do. They have some rights to have their confidential documents remain confidential so they can get the best advice they possibly can to represent this country, as the executive branch should. This is one of the worst arguments I have ever heard on the floor of the Senate. And it is all done for political purposes because they believe that this Hispanic man, a Republican-- which is very tough for them to take, who they believe to be conservative--he is certainly probably moderate to conservative--I just know he is qualified. Everything about him says he is qualified. All of his experience tells me he is qualified. The fact he led the class at Harvard Law School says he is qualified. The fact he was one of the leaders of the class at Columbia University says he is qualified. The fact that he served Amalya Kearse, a Carter appointee, and she praised him says he is qualified. The fact he served for a Justice of the U.S. Supreme Court, Anthony Kennedy, says he is qualified. But now the administration, in response to these ridiculous claims and these ridiculous statements made on the floor of the Senate, has now sent a 15-page, single-spaced letter that basically covers every one of these stupid claims that have been raised. I guess maybe I should not say that. Anyone can raise any claim, whether it is stupid or otherwise, on the floor, and every Senator can ask even the dumbest questions of nominees if they want. That does not mean nominees have to answer them. It does not mean they have to answer them the way they want to--the dumb questioners, that is. We have all done that from time to time, and we all fit into that category, maybe, from time to time, but not consistently. There is nothing more than prejudice going on here; nothing more than unfairness going on here; nothing more than a double standard going on here; nothing more than trying to trip up the President of the United States and make his life even more miserable than it is every day with North Korea, with Iraq, with all the other problems we have in this world, including France, Germany, and Belgium, which are acting disgracefully and deserve the condemnation of the world for their continuous disgraceful disruptions of the unity of our NATO allies and for their refusal to back Turkey, our ally who has stood up when others have not stood up. We don't need them. We will back Turkey, and we should back Turkey. What gets me is we are in the middle of a filibuster of a Federal judge, when the Constitution says we should give advice and consent, not advice and obstruction, not advice and a filibuster, not advice and unfairness. I have to admit there were some on our side who treated President Clinton in a shabby fashion. Not very many, but there were a few. I remember as a young Senator I criticized President Carter pretty strongly one day. Later, I was on a 3-hour television show with him, sitting right beside him. We had plenty of time to discuss and talk, and I apologized. I said I really feel badly; I felt I didn't treat you fairly. He leaned over and smiled and said, Orrin, I never knew you did it. He said, you were so fair in so many other ways, I didn't notice any unfairness. That is typical of what a fine, gracious man he is. Bill Clinton has plenty of faults, we all know that, like all the rest of us. Maybe not like all the rest of us, but we all have faults, we will put it that way. And sometimes he wasn't treated as fairly as he should have been, but I sure tried to do so. I certainly did with regard to his judicial nominees. I will tell you one thing, we never, ever filibustered a Clinton nominee, not once. There were some cloture votes, but it wasn't part of a filibuster; it was more to move the Senate along. And nobody can claim anybody on our side actually filibustered a Federal judge, which is a disgraceful thing to do. I have to say I care a great deal for all of my colleagues in this body. These are 100 of the greatest people on Earth. I care for my colleagues on the Democratic side. But where are they? Why aren't they telling us why? Why don't they give us a reason that is a good reason for being against Miguel Estrada, with all of the qualifications he has? Why couldn't they treat us the way they wanted us to treat their circuit court nominees, which I made sure we treated right. Why can't they be decent to this Hispanic nominee, the first ever nominated to the Circuit Court of Appeals for the District of Columbia, one of the most important courts? Why is it that Senators from the Democrat side get on the floor and act as if, because a person is conservative, that person is not going to do what is right under the law; that person is not going to make sure the law is fulfilled; that person is not going to make sure the principle of stare decisis or prior precedent is followed? Miguel Estrada says he will, and he's an honest man. He will. Why is it they think only liberal ideas are any good? I kind of admire people who think only their point of view is correct and everybody else is wrong. But I have to tell you, some of the greatest judges in our country's history are conservatives. Some of the greatest judges are liberals. And some of the worst are liberals--and conservatives. Miguel Estrada would make one of the best, and he is the American dream personified. He would open the doors for many Hispanic people, not just in the Federal judiciary but in so many other ways throughout this society because he will set an example that will be exemplary for all of us to observe. He should have a chance to sit on this court and should not have to go through this type of unfair treatment. No nominee to the Federal court should have to go through a filibuster. But, if the Democrats are going to filibuster, why don't they get over here and filibuster? Why don't they tell us the reasons why? If you look at their reasons, there is not a bit of substance to any of them. I ask unanimous consent the most recent letter of the White House, this 15-page single-space typewritten letter I think answers every Democrat concern, be printed in the Record.