Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I have been on the Senate floor since the debate on the Miguel Estrada nomination commenced last week. I have stated in the strongest terms my support for his qualifications. I am not alone. Virtually anybody who knows him, anybody who has any background on Miguel Estrada, feels the same way. I have stated in the strongest terms this support. The record is replete with reasons why he would be an excellent addition to this DC Circuit and with facts dispelling the specious arguments of his detractors. I will now address the procedural tactic that is being used against Miguel Estrada, and I am talking about a filibuster of this nomination. A filibuster of Mr. Estrada's nomination will require a cloture vote by the Senate to end debate, unless reasonable minds on the Democratic side can prevail. I know there are some who are working to try to prevail, just like I had to work on our side to prevail over those who wanted to filibuster some of President Clinton's nominees. I am hoping reasonable people on the Democrat side will prevail. They simply must prevail because we really do not want to start down the road of a filibuster. As I say, a filibuster of Mr. Estrada's nomination will require a cloture vote by the Senate to end debate. This means that a supermajority of 60 votes will be required to allow us to proceed to an up-or-down vote on Miguel Estrada's nomination. That is an insult to Miguel Estrada. It is an insult to the Senate. It is an insult to Hispanic people all over this country who are watching what is happening. Actually, it is an insult to this coequal branch of government, the judiciary. I have taken the Senate floor on more than one occasion to decry the tactic of enforcing judicial nominees through a cloture vote. My position has been the same, regardless whether the nominee was appointed by a Democratic or Republican President. I am proud to say during my nearly 30 years in the Senate, I have never voted against cloture for a judicial nominee, even on the rare occasion when I opposed a judicial nomination and ultimately voted against that nomination. An example in point is the nomination of Lee Sarokin to the Third Circuit. Even though I voted against his nomination, I voted in favor of cloture because I strongly believed his nomination deserved to succeed or fail on the basis of the votes of a simple majority of the Senate, not on the will of merely 41 Senators who vote against cloture. I argued strenuously in favor of invoking cloture on two of President Clinton's judicial nominees, Marcia Berzon and Richard Paez. There are times when legislators must, to be effective, demonstrate mastery of politics, but there are also other times when politics, though available, must be foresworn. This is one of those times. There is a quote of Disraeli that addresses this situation perfectly. To paraphrase, next to knowing when to seize an opportunity, the most important thing is knowing when to forgo an advantage. I hope my colleagues will forgo their perceived advantage of a filibuster of Miguel Estrada's nomination. Forcing a supermajority vote on any judicial nominee is a maneuver that needlessly injects even more politics into the already overpoliticized confirmation process. I believe there are certain areas that should be designated as off limits from political activity. The Senate's role in confirming lifetime appointed article III judges and the underlying principle that the Senate perform that role through the majority vote of its Members are such issues. Nothing less depends on the recognition of these principles than the continued untarnished respect for our third branch of Government, the one branch of Government intended to be above political influence, the Federal judiciary. On the basis of principle, I have always tried to be fair to judicial nominees, regardless of the political affiliation of the President making the nomination. The opposition to now Judge Berzon and now Judge Paez, two Clinton nominees, was led by members of my own party. They believed very deeply that Marcia Berzon, with her very liberal philosophy, would become an activist judge. They knew, in their eyes-- and I think they were pretty right--that Judge Paez as a Federal district court judge was an activist judge, writing activist decisions. I met Judge Paez, and he said he would be very careful not to be activist in the future. It did not take him long on the Ninth Circuit Court of Appeals, in the eyes of some, to go back to his activist ways. Activism means acting as a superlegislator on the bench, making laws that should be made by those who have to stand for reelection--Members of Congress and the President. When members of my own party fought against Judge Berzon, now Judge Berzon, and then Judge Paez, during that time I stood against the use of cloture to attempt to thwart a vote on their nominations, and I was successful. Now it is my friends across the aisle first subjecting Miguel Estrada's nomination to a cloture vote. I stand just as firmly today against the use of this tactic to prevent his nomination from coming to the floor of the Senate for an up-or-down vote, which is what the President deserves. If we are going to be fair to the President of the United States, whoever the President may be, we should always provide that opportunity to have an up-or-down vote on these nominees. To be sure, this body has on occasion engaged in the dubious practice of filibusters of judicial nominees, but forcing the filing of cloture on a judicial nominee remains the exception rather than the rule. We have always been able to thwart the attempted filibuster by some who I think at the time did not fully realize the import of their actions. We have always been successful. Overall, these episodes have been infrequent and they have been unfortunate in each case. I hope they will remain as such and that what we are seeing today is not the beginning of a long battle of fighting filibuster threats against President Bush's judicial nominees. There is real cause for concern that is not to be taken lightly in the wake of the November elections. Leading liberals hit the newspapers to urge my Democratic colleagues to use the filibuster as a tool to defeat President Bush's judicial nominees. On November 11 of last year, the Legal Times published an article: ``A Major Shift in the Battle for the Bench.'' The article was subtitled: ``With GOP steering the Judiciary Committee, liberal advocates turn to more desperate measures.'' The article reported on the plans of liberal interest groups to refocus their energies against President Bush's judicial nominees on the Senate floor where ``filibusters and legislative horse trading may give liberal interest groups their best shot at influencing the process.'' The senior legislative counsel of one liberal group called the filibuster a ``plausible weapon.'' Also on November 11, two liberal law professors published an op-ed in the Los Angeles Times entitled: ``No to a Far-Right Court: Use Filibusters.'' In an implicit nod to the rarity of the use of a filibuster to defeat a judicial nominee, the article urged ``courageous Democrats'' that a filibuster is the only way to thwart President Bush's nominees. The New York Times on November 10 similarly urged Democrats ``not [to] be afraid to mount a filibuster,'' which, again, implicitly acknowledges the extremity of filibustering a judicial nomination. On November 14, the Madison Capital Times reported that a Federal feminist group was targeting Wisconsin for a grassroots campaign to drum up support for the filibustering of Bush Supreme Court nominees. The paper candidly reported: The tactic would call on Senators to filibuster in order to block [pro-life] nominees. A filibuster is a parliamentary technique that allows a majority of Senators to keep a vote from being taken. Defeating a nominee requires a majority vote in the Senate, but only 41 of the 100 Senators are needed to sustain a filibuster. The rallies in Madison and Milwaukee were only 2 of 12 such campaigns by this group on college campuses nationwide to drum up support for filibustering judicial nominees based on the single litmus test issue of abortion. Madam President, I ask unanimous consent editorials be printed in the Record.

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

Mr. HATCH. I would modify my unanimous consent request to 8 additional hours in addition to the 6 I have asked for.

Mr. HATCH. What these articles suggest is that the liberal interest groups are just as intent as ever on using every trick in the book to defeat President Bush's judicial nominees. From the start of their record, as they have tried to do with Miguel Estrada and others, by forcing a cloture vote, it appears the liberal interest groups will stop at nothing to further their agenda. What is more, it looks as if the defeat we are seeing on Miguel Estrada is not so much about him as it is about seeing how well a filibuster works in case there is a Supreme Court nominee this summer. It also may have a more sinister purpose: To desensitize the American people to filibustering judicial nominees so that the practice will become more acceptable and so that less outrage will be expressed over the filibustering of other circuit nominees and ultimately a Supreme Court nominee. This is all part of the strategy of changing the ground rules on judicial nominations that Senate Democrats discussed at their retreat back in April of 2001. I am not the only one who recognized the dangerous precedent that some Democrats would set in filibustering qualified nominees. The Washington Post, hardly a bastion of conservatism, warned in a December 5, 2002, editorial that ``a world in which filibusters serve as an active instrument of nomination politics is not one either party should want.'' The Washington Post urged Democrats to ``stand down'' on any attempt to deny Miguel Estrada a vote because his nomination ``in no way deserves a filibuster.'' I couldn't agree more. I hope I am wrong about the extent to which the liberal interests groups have had a role in orchestrating this lengthy debate on Miguel Estrada's nomination. I hope that this is not another example of an attempt by some of my Democratic colleagues to change the ground rules on judicial nominees. I hope that my Democratic colleagues will exercise the same independence that I did when I joined them to invoke cloture on the nominations of Clinton judicial nominees who were opposed by many of my Republican colleagues. When I argued to invoke cloture on the nominations of Judge Berzon and Judge Paez, I noted several important reasons for avoiding a filibuster of judicial nominees. One is that the Senate's constitutional duty of advise and consent contemplates that a vote by a simple majority of the Senate determine the fate of a judicial nominee. There is nothing in the Constitution that gives that power to a minority of 41 Senators, just as that power should not be yielded by 10 Senators in a party-line vote in committee. Another reason is that most of the fight over a nomination has occurred well before a nominee arrives at the Senate floor. The battles are largely fought between the White House and the Judiciary Committee, since it is our job to vet the nominees. By the time a judicial nominee reaches the Senate floor, he or she deserves a vote on the merits without having to clear the procedural hurdle of a cloture vote. In the past, several of my Democratic colleagues have joined me in condemning the practice of forcing judicial nominees through a cloture vote. For example, during the debate on Clinton nominees, one of my Democratic friends spoke passionately about this tactic. He said: I . . . do not want to see the Senate go down a path where a minority of the Senate is determining a judge's fate on votes of 41. He continued: I . . . took the floor on occasion to oppose filibusters to hold . . . up [nominations] and believe that we should have a vote up or down. On a different occasion, the same colleague said: I have stated over and over again on this floor that . . . I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. And another Democratic colleague put it simply when she said: A nominee is entitled to a vote. Vote them up or vote them down . . . If someone has an opposition to a judge, they should come to the floor and say that. I agree wholeheartedly with these statements. Miguel Estrada waited more than 16 months for his confirmation hearing. He waited another 4 months for a committee vote on his nomination. And now his nomination is being subjected to yet another hurdle: Extended floor debate on his nomination with no end in sight. If we're going to debate Mr. Estrada's nomination, then let's do it, vote on it, and get on with the other important matters that are the work of this body. I hope my colleagues are not going to the unworthy ends of filibustering the President's nominees. It is unfair to the President. It is unfair to the process. It is unfair to Miguel Estrada who has earned the right to be here. I think it is important to remind my Democratic colleagues of statements they have made over the years opposing filibusters of judicial nominees. Of course, there was a Democratic President in the White House at the time these statements were made. I guess that is the double standard for Mr. Estrada, in more ways than one. I remember, on the nomination of Merrick Garland, here was a statement of Senator Sarbanes, who came to the Senate the same time I did, and whom I respect, the Senator from Maryland. It was on the nomination of Merrick Garland, President Clinton's nominee to the very same court, the Circuit Court of Appeals for the District of Columbia, for which Miguel Estrada has been nominated. He said this: It is worse than that. It is not whether you let the President have his nominees confirmed. You will not even let them be considered by the Senate for an up-or-down vote. That is the problem today. In other words, the other side will not let the process work so these nominees can come before the Senate for judgment. Some may come before the Senate for judgment and be rejected by the Senate. That is OK. But at least let the process work so the nominees have an opportunity and the judiciary has an opportunity to have these vacant positions filled so the court system does not begin to break down because of the failure to confirm new judges. The Senator from Delaware, when he was chairman of the committee, always measured up to that responsibility, I think often taking a lot of political heat for doing it. But he was out to make sure the system could function. He had Republican Presidents nominating judges. He processed their nominations. He brought them to the floor of the Senate. He gave the Senate a chance to vote on them up or down for those people to get confirmed. that process is breaking down. On another occasion Senator Biden said: So any member who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as they are in a position where they are in the general mainstream of American political life and they have not committed crimes of moral turpitude, and have not, in fact, acted in a way that would shed a negative light on the court. But I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor. That was a statement of Senator Joseph Biden, Congressional Record, March 19, 1997 at S2540. This is a statement of Senator Barbara Boxer on the nomination of Margaret Morrow, to the Ninth Circuit Court of Appeals: According to the U.S. Constitution, the President nominates, and the Senate shall provide advice and consent. It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor. That statement of Senator Boxer was printed in the Congressional Record, May 14, 1997 at S4420. On the nomination of Judge Richard Paez, to the Ninth Circuit, Senator Leahy, the distinguished ranking member and Senator from Vermont, said: I have heard rumors that some on the Republican side planned to filibuster this nomination. I cannot recall a judicial nomination being successfully filibustered. I do not recall earlier this year when the Republican Chairman of the Judiciary Committee and I noted how improper it would be to filibuster a judicial nomination. During this year's long- delayed debate on the confirmation of Margaret Morrow, Senator Hatch said: `I think it is a travesty if we ever start getting into a game of filibustering judges.' Well, it appears that travesty was successfully threatened by some on the Republican side of the aisle and kept the Minority Leader from fulfilling his commitment to call up the nomination for a confirmation vote. That is printed in the Congressional Record, October 14, 1997 at S12578. He said: If Senators are opposed to any judge, bring them up and vote against them. But don't do an anonymous hold, which diminishes the credibility and respect of the whole U.S. Senate. I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote. I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. That was printed in the Congressional Record, June 18, 1998 at S6523. He said: I hope we might reach a point where we as a Senate will accept our responsibility and vote people up or vote them down. Bring the names here. If we want to vote against them, vote against them. That was printed in the Congressional Record, October 22, 1997 at S10925. He also said: I hope that when we return . . . there will be a realization by those in this body who have started down this destructive path of attacking the judiciary and stalling the confirmation of qualified nominees to the Federal bench that those efforts do not serve the national interest or the American people I hope that we can once again remove these important matters from partisan and ideological politics. That is a statement of Senator Patrick J. Leahy printed in the Congressional Record of November 13, 1997 at S12569. There are other statements by my colleagues, but I don't want to bore the Senate with any more. Let me just say, I hope we do not have a double standard, but it sure looks as if we do. If Miguel Estrada's nomination is truly filibustered--and I hope it is not, but we are getting to the point where we know it will be and we know that it is because the time is passing--then I think this body is going to be sorry because in the past we have been able to stop filibusters. Both sides have labored diligently to do so. I have to tell you, if this is the way it is going to be in the future, nobody is going to be able to stop them. It just means that really highly qualified candidates who are controversial to one side are going to be filibustered. It is that simple. I don't want to see that day come. I am disappointed and somewhat outraged with the recent letter that was sent to the President of the United States. This was sent by the distinguished minority leader and the distinguished Democrat leader on the Judiciary Committee. The fact of the matter is, Miguel Estrada's hearing was held in September of last year while the Senate was under Democratic control. The Democrats remained in control for the rest of the 107th Congress. If they weren't satisfied with Miguel Estrada's answers at the hearing, they could have held another hearing. But this is what the letter said: Dear Mr. President: We are writing in reference to your nomination of Miguel Estrada to the Estrada to the U.S. Court of Appeals for the District of Columbia Circuit. Pursuant to the Constitution, the Senate is to act as a co-equal participant in the confirmation of judges to the federal bench. Unlike nominations made by a President for Executive Branch appointments, judicial nominees are reviewed by the Senate for appointment to lifetime positions in the Judicial Branch. The Senate has often requested and received supplemental documents when it is considering controversial nominations or when evaluating a candidate with a limited public record. The Chairman of the Senate Judiciary Committee wrote to your Administration on May 15, 2002 to request such supplemental documents to assist in Senate consideration of the Estrada nomination. In particular, the request was made for appeal recommendations, certiorari recommendations, and amicus recommendations that Mr. Estrada worked on while at the Department of Justice. Prior Administrations have accommodated similar Senate requests for such documents. Such documents were provided during Senate consideration of the nominations of Robert H. Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, and William H. Rehnquist. Your Administration has refused to accommodate the Senate's request for documents in connection with the Estrada nomination. That refusal was a matter of inquiry at the confirmation hearing held on this nomination on September 26, 2002. Following the hearing, Senator Schumer wrote to the Attorney General on January 23, 2003, to follow up on the request. I note parenthetically that was after President Bush won the election and the control of the Judiciary Committee was on its way to the Republicans in the Senate. To continue with the letter: In addition to requests for documents, Senators frequently question judicial nominees during their confirmation hearings to determine philosophy, views and temperament. For example, then-Senator John Ashcroft asked nominees: ``Which judge has served as a model for the way you would conduct yourself as a judge and why?'' Mr. Estrada refused to answer a similar question. During consideration of President Clinton's judicial nominees, Republican Senators asked repeated questions regarding nominees' judicial philosophy, views on legal matters, and approaches to interpreting the Constitution. They insisted on and received answers. During his consideration before the Senate Judiciary Committee, Mr. Estrada failed to answer these kinds of questions. These questions have not only been routinely asked by the Senate, they have been routinely answered by other nominees-- including other nominees from your Administration. For the Senate to make an informed decision about Mr. Estrada's nomination, it is essential that we receive the information requested and answers to these basic legal questions. Specifically we ask: 1. That you instruct the Department of Justice to accommodate the requests for documents immediately so that the hearing process can be completed and the Senate can have a more complete record on which to consider this nomination; and 2. That Mr. Estrada answer the questions that he refused to answer during his Judiciary Committee hearing to allow for a credible review of his judicial philosophy and legal views. We would appreciate your personal attention to this matter. Sincerely, Tom Daschle. Patrick Leahy. Madam President, as I said before, if they weren't satisfied with Miguel Estrada's answers at his hearing which they conducted and which they controlled, then they could have held another hearing. Nothing would have stopped them. They had the power to do so. They did not. They could have asked him followup questions in writing. Only two of the Democrats did. The fact of the matter is Estrada did answer the questions he was asked by the Democrats and Republicans back in September when he had his hearing. My Democratic colleagues are unhappy only because Mr. Estrada did not say anything they could use to oppose him. In other words, he didn't tell them what they really wanted to hear, which would have been mistakes, or some error, or some difference in opinion they could then use to oppose him. He answered the questions. He just didn't answer them the way they wanted him to answer. That is why they are trying to engage in this fishing expedition and demanding unprecedented, unfettered access to the internal privileged memoranda Mr. Estrada offered at the Department of Justice. These memoranda are attorney work product done for our country when he worked for the Solicitor General. Any lawyer would object to having to hand them over. He didn't. He was proud of his work. He didn't care if the Government would give them over. But the Government has taken a principled position; that is, these internal documents should not be turned over to the Senate Judiciary Committee to be used to try to thwart the nomination of anybody, or to be used, since they were internal confidential documents. They were the work products of attorneys within the Solicitor General's Office. It is like asking a nominee to give up all of the confidential information his law firm had and that he worked on during the time at his law firm that is not in the public record. Any lawyer would object to turning that over. What are we going to do when we disagree with somebody who worked for Senator Hatch? Are we going to ask for all of the internal documents the man or woman did while he worked for me that were given for my purview as their supervisor, and as their Senator, so I could take those documents and determine what to do in the future? Let us make it even more clear. Should Senator Daschle's staff be subject to this kind of thing? Why would the Solicitor General's Office be subject to having to turn over confidential documents that were meant to help the Solicitor General make decisions on behalf of our country? Can you imagine how that would chill the work of the people in that office if attorneys there wanted to become judges someday? You don't think that would cause them to be putting their fingers up into the wind and asking, How will this be interpreted someday if I ever come up for a judicial nomination? Hopefully they wouldn't, but, of course, they would. Let us be honest about it. But here, unlike Senator Daschle's representations--he certainly is a friend of mine. He signed this letter. It is the Department of Justice, not Mr. Estrada, that holds the memos. The Department has set forth the reasons why it is so inappropriate to release these memos. It is crystal clear to me--to all seven remaining former Solicitors General of the United States, and to the Washington Post. It is clear to them, and to the Wall Street Journal. It is to just about everyone, it appears, except to my Democratic colleagues. Why would they want these memoranda? To see if they could find some reason to again attack Mr. Estrada? Is this Hispanic gentleman so unqualified they have to go on fishing expeditions to try to find things to give him a difficult time with? The fact of the matter is he is as qualified as anybody we have had before the committee, and the American Bar Association said so. I know the Supreme Court Justices feel so. I know a lot of leading Democratic lawyers in this town are saying this is the man who deserves confirmation. Why is he being treated differently? One of my colleagues the other day was complaining he thinks some of us over here are calling our Democratic colleagues racists because they are against Miguel Estrada. No. Nobody over here has made that comment. Nobody over here has even implied that. But what I have said is it isn't because he is Hispanic they are against him--it is because he is a Hispanic Republican who they think is conservative and who is going on a court they think is equally divided--where over 90 percent of the cases are unanimous decisions, anyway, in that court. It is the worst excuse for voting against him I have ever heard. But it is because he is a Hispanic Republican conservative. That is the reason they are against him. They are so afraid he might not please them when he gets on the Circuit Court of Appeals for the District of Columbia. I suggest to them he is a great lawyer. He understands precedent. He understands the rule of precedent. He understands the rule of what we call stare decisis in the law, and he more than told every one of them who questioned him over and over that he would apply the law as it is, regardless of his personal beliefs. What more can anybody say? They are accusing him of not being responsive? I am accusing them of not being fair to a Hispanic conservative Republican. I do not know what his point of view is on Roe v. Wade. To this day, I don't know. I do know he at one time helped the National Organization for Women in a serious case, which I think if they were offering him as a nominee they would argue means he is all right. I do not know what his position is. But I will tell you this. He deserves to be confirmed as a jurist on the Circuit Court of Appeals for the District of Columbia. Let me address in a little more detail why this letter Senator Daschle and Senator Leahy sent to President Bush is so outrageous in its continuous demand for privileged documents. At the outset, I must note the nature of this request for unfettered access to the universe of Mr. Estrada's work product is truly extraordinary. Contrary to what Senator Daschle and others would have us believe, and as I have mentioned before, during the last Congress the Senate confirmed Jonathan Adelstein, a former aide to Senator Tom Daschle to a position on the FCC. The Republicans did not demand all of Mr. Adelstein's memoranda to Senator Daschle on telecommunications issues before confirming him, despite the fact they would have been useful in determining how Mr. Adelstein would have approached his decisions as a commissioner. This is because of the obvious reason that to do so would have intruded into the deliberative relationship between Mr. Adelstein and Senator Daschle. Nobody here ever wanted to do that, even if we didn't like the appointment of Mr. Adelstein. And some on our side definitely did not like that appointment. I was not one of them, but there was a considerable number who did not agree with this appointment for the same reason, and for other equally sound reasons that I will detail. No Member of this body should advocate holding Mr. Estrada's nomination hostage to demands for access to internal, confidential documents he authored at the Solicitor General's Office. My Democratic colleagues have claimed that the Department of Justice has a history of disclosing previously confidential, internal documents in connection with confirmation proceedings. This is simply not accurate. In a letter dated October 8, the Department of Justice points out that since the beginning of the Carter administration there have been 67 former Department of Justice employees confirmed as Federal circuit judges--38 of whom, like Mr. Estrada, had no prior judicial experience. Eight of these nominees, again like Mr. Estrada, had worked in the Solicitor General's Office. The Department of Justice could find no record of having produced internal, deliberative materials created by the nominee while a DOJ lawyer in any of these cases. Madam President, one of my Democratic colleagues listed six nominees in connection with which he claimed that the Department of Justice released confidential, internal documents. In its October 8 letter, the Department of Justice explained that of these nominees, the hearings of only one--only one; Judge Bork--involved documents from their service in the Solicitor General's Office. I think there have been those misrepresentations made to Senators in their caucus, and they are absolutely false, because I chatted with some of my Democratic friends on my way over to the medical liability hearing I conducted this afternoon, and they were citing these same specious arguments that they had been told. Look, if we are going to tell our colleagues things, they ought to be accurate. In that one case--Judge Bork's--the Department of Justice produced a limited number of documents related to specific topics of interest to the committee. The Department of Justice did not agree to the fishing expedition that was demanded, and they certainly did not agree to the type of fishing expedition that my Democratic colleagues now seek to impose upon Mr. Estrada in the Justice Department. As the Department of Justice observed: The vast majority of memoranda authored or received by Judge Bork when he served as Solicitor General were neither sought nor produced. And the limited category of documents that were produced to the Committee did not reveal the internal deliberative recommendations or analysis of assistance to the Solicitor General regarding appeal, certiorari, or amicus recommendations in pending cases. Exactly what they have been asking for here is something that has not been done. Yet I know it has been represented to some of my Democratic colleagues that the Department of Justice did give these kinds of documents. Well, they did not. And I hope my colleagues are watching this so they can get the truth. This is hardly the unfettered, unprecedented access to privileged work product that my Democratic colleagues now seek. And why do they seek it for this fellow who has every qualification to be on the Circuit Court of Appeals for the District of Columbia, and more, who they have not laid a glove on, who they cannot name one thing that would refute his nomination other than these specious arguments that he has not answered the questions? Sure, he has answered the questions. They just don't like the answers. My Democratic colleagues also claim that policy considerations weigh heavily on the side of disclosure. Curiously, however, they fail to mention the letter that the committee received from all seven living former Solicitors General of the United States, four of whom are leading Democrat lawyers, leading Democrat former Solicitors General. I know some of my colleagues on the other side have not heard that yet because I asked some of them what is going to happen here and they indicated they are probably going to filibuster. And then one of them said: Why don't you give up those documents from the Justice Department? I said: Well, seven former Solicitors General, four of whom are Democrats, said that would be preposterous, that they should not do that. Those are confidential. That is the work product of attorneys in the Solicitor General's Office. You should have seen the surprised look on some of my colleagues' faces? ``Really?'' It seems to me, if you are going to argue against a person, you ought to at least tell the truth and the facts on the other side. Why is it they are picking on this young, terrific Hispanic candidate for this job, who has the highest rating from the American Bar Association, a unanimously well-qualified rating? The letter, dated June 24, 2002, was signed by Democrat Seth Waxman-- we all respect Seth; he is a great lawyer--Walter Dellinger--one of the great teachers in this country; taught at Duke; a fine man; I have grown to think a great deal of him as I have listened to him on a variety of matters, where in the early days I was not sure I did--Drew Days, who is a wonderful African-American former Solicitor General, and a very adamant Democrat; all of them are--and Archibald Cox. You have to go pretty far to find somebody more prestigious than Archibald Cox. All Democrats: Waxman, Dellinger, Days, and Cox. And it was signed, as well, by Republicans Ken Starr, Charles Fried, and Robert Bork. The letter notes that when each of the Solicitors General made important decisions regarding whether to seek Supreme Court review of adverse appellate decisions and whether to participate as amicus curiae in other high-profile cases, they ``relied on frank, honest and thorough advice from [their] staff attorneys like Mr. Estrada. . . .'' The letter explains that the open exchange of ideas, which must occur in such a context, ``simply cannot take place if attorneys have reason to fear that 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. This is a bipartisan group of seven former Solicitors General--all the living ones. The former Solicitors General are not the only ones who are disturbed by my Democratic colleagues' efforts to obtain privileged Justice Department memoranda. The editorial boards of two prominent newspapers have also criticized the attempt to obtain these records. I am sure there are others as well. On May 28 of last year, the Washington Post--as I say, hardly a bastion of conservative thought--editorialized that the request ``for an attorney's work product would be unthinkable if the work had been done for a private client. The legal advice by a line attorney for the federal government is not fair game either.'' According to the Washington Post: Particularly in elite government offices such as that of the solicitor general, lawyers need to speak freely without worrying that the positions they are advocating today will be used against them if they ever get nominated to some other position. Gee, that is a pretty good reason from the Washington Post. I have to tell you, that is a wise editorial, and it is true. And it goes along with the seven former Solicitors General, four of whom are Democrats. The Wall Street Journal also criticized my Democratic colleagues' request in two editorials. In its second editorial, which appeared on June 11, they called the request ``outrageous'' and noted that the true goal was ``to delay, [to] try . . . to put off the day when Mr. Estrada takes a seat on the D.C. Circuit Court of Appeals, from which President Bush could promote him to become the first Hispanic-American on the U.S. Supreme Court.'' The Wall Street Journal got it pretty right. What is really behind all this is to damage this person as much as they can so this Hispanic gentleman, with all of these qualifications, can never receive a nomination to the U.S. Supreme Court, can never be considered. Well, I am doing my best to make sure that does not happen, that he will have a chance, just as any other great lawyer in this country, to someday be nominated. And that is one reason why I have spent so much time on the floor. Let me conclude. The bottom line is that my Democratic friends are seeking internal, confidential material that any reasonable person, thinking about it, would agree should not be delivered by the Justice Department to the Senate for partisan purposes--for any purposes. Those seven former Solicitors General had no axes to grind. They understand how important those documents are, and how important they are to be held confidential. Yet my colleagues on the other side keep acting as if that is a right they should have no matter what. Their attempts have been criticized by all seven living former Solicitors General and by at least two major newspapers of which I am aware. But more fundamental is the fact that Mr. Estrada does not object to turning over these memoranda. He has nothing to hide. It is the Department of Justice that has an institutional interest and a rightful institutional interest in refusing to comply with my Democratic colleagues' request. I, for one, understand and agree with the Department's position but the Department's recalcitrance in this dispute should neither be imputed to nor held against Mr. Estrada. What bothers me is that we have had colleague after colleague from the other side come to the floor knowing that these seven Solicitors General have given this opinion--knowing it--and have not informed their colleagues, some of whom are very mixed up about this. Why? Why wouldn't they tell them the truth? I guess to embarrass Mr. Estrada. This is a fishing expedition par excellence. It is wrong. They just don't want a conservative Hispanic Republican on this court at this time, especially one who has all the credentials that Miguel Estrada has because he would have to be on anybody's short list for the Supreme Court of the United States of America. The longer they can delay him from taking his seat, the more difficult it will be for him to have any chance of being on the Supreme Court and become the first Hispanic not only on the Circuit Court of Appeals for the District of Columbia but the first Hispanic to serve on the U.S. Supreme Court. I am not saying the court is going to pick Miguel Estrada, but he would be on the short list; He is that good. How many Senators have argued 15 cases before the Supreme Court, winning 10 of them? How many Senators graduated magna cum laude from Columbia or from Harvard, which he did? How many Senators held the prestigious position of editor of the Harvard Law Review? I don't know of any. All I can say is, how many Senators could have served not only a circuit court of appeals judge but also as a clerk to a Justice of the U.S. Supreme Court, Justice Anthony Kennedy? I don't think any of them. Maybe some, but I don't know of them. We have reached the point where it is just terrible. We have waited long enough. We have been going on this debate now for a week. That is longer than most Supreme Court nominations. This man certainly deserves to have an up-or-down vote and not a vote on cloture. I have been asked by the leader to make the following unanimous consent request: I ask unanimous consent that there be an additional 6 hours for debate on the Estrada nomination; provided further that the time be equally divided between the chairman and ranking member or their designees, and that following the conclusion of that time, the Senate proceed to a vote on the confirmation of the nomination with no intervening action or debate.

Mr. HATCH. Let me modify it to 10 additional hours.

Mr. HATCH. No, they weren't.

Mr. HATCH. I don't blame the distinguished Senator from Connecticut for having to make these objections.

Mr. HATCH. I am going to keep making them because it is apparent now that we are in the middle of a filibuster. I just want to warn the Senate, that is not a good thing. It is not fair to the President. It is not fair to Miguel Estrada. It is not fair to the process. It is not fair to the judiciary. It is not fair to Senators who have been fair to Democrat nominees who were heavily contested where there were no cloture votes or no, should I say, real filibuster. It is just plain not fair. What is so wrong with giving this Hispanic man, who may be conservative and who is Republican, an opportunity to serve, to break through that intellectual glass ceiling that suddenly seems to have been erected and give him an opportunity to serve since he has such great ability to be able to do so and has proven it? I repeat again, he has the highest recommendations of the American Bar Association, the gold standard of my colleagues on the other side. They are the ones who said that the ABA recommendations are the gold standard, and he holds a unanimously well-qualified, highest rating of the American Bar Association. How can we stand here and filibuster somebody like that? All I can say is that I hope everybody in America is watching us because it is just plain not fair nor is it right. If we are going to do this, it is a road I surely don't want to see the Senate go down. I am hoping that my good friend from Connecticut will talk to his friends on the other side and my friends on the other side and get some reason. We are now at a new point in history for this body. In the confirmation of judicial nominees, this will be the first time in the history of this country and of this body that a filibuster will be conducted against a circuit court of appeals nominee, a true filibuster. I am going to keep the door open for my colleagues to see the error of their ways, and hopefully we can resolve this matter before the end of this week or in any reasonable time. I offered up to 50 hours that were objected to. I am surely hoping that my colleagues who think a little more clearly on the other side will influence all of our other colleagues who are seemingly so caught up in an ideological warfare and give this vote to Miguel Estrada who deserves it. I notice my colleague has been patiently waiting for a long time. I apologize to him, but I had to make these comments. I yield the floor.

Mr. HATCH. Even if I go up to 40 or 50 hours?

Mr. HATCH. Let me go further, let me modify it to 20 additional hours, which would probably be close to 3 more days.

Mr. HATCH. Will the Senator yield on that point?

Mr. HATCH. I just ask the Senator to yield on that narrow point.

Mr. HATCH. I do not want to debate. I just want to make one point.

Mr. HATCH

Mr. HATCH. He did.

Mr. HATCH. And he has done it on behalf of clients as an attorney should.

Mr. HATCH. Senator Feinstein asked him about Roe v. Wade. He basically said that he should not discuss his views on it, but he said, on page 128: I have had no particular reason to go back and look at whether it was right or wrong as a matter of law as I would if I were a judge that was hearing the case for the first time. It is there. It is the law as it is subsequently refined by the Casey case. And I will follow it. And Senator Feinstein said: So you believe it is settled law? Mr. Estrada said: I believe so. So maybe he did not answer exactly the way you wanted him to in the written questions, but in the oral testimony he made it very clear that he would follow the law and that he believes it is settled law. I do not know what more he should have said.

Mr. HATCH. Will the Senator yield again?

Mr. HATCH. I certainly do not know what more he should have said. If you go to page 128----

Mr. HATCH. Well, he did. In his oral questions he was asked about Roe v. Wade, and he said it was settled law, he would apply it. Maybe he did not say exactly what you wanted him to at the time, but that is what he did say.

Mr. HATCH. Will the Senator yield for a question?

Mr. HATCH. That is what it said in the transcript.

Mr. HATCH. Does the Senator remember--you may or may not have been there at the time--he was asked about Roe v. Wade, and he said it was settled law and that he would apply it? Does the Senator remember that?

Mr. HATCH. It is on page 128 of the transcript. Specifically asked, he said it is settled law and he would apply it. I do not know what more he could say.

Mr. HATCH. Will the Senator yield on another point?

Mr. HATCH

Mr. HATCH. For the information of Senators, tomorrow the Senate will resume debate on the nomination of Miguel Estrada. We have now spent 4 days, over 20 hours, debating this well-qualified and capable nominee. While my colleagues on the other side of the aisle continue to object to any time agreement, we will continue to work with them to move this nomination to a final vote. Many Members have participated in the debate, and we appreciate their efforts. However, at some point each side will have had adequate time to make their case, and that the Senate should then vote on this nomination. At this time, we will continue to give Members the opportunity to speak. Senators should, therefore, expect a late night tomorrow. In addition to the Estrada nomination, it is the leader's intention to also complete action on the omnibus appropriations conference report prior to the President's Day recess. Again, I remind Senators that they should expect late nights and rollcall votes throughout the remainder of the week.