Orrin Hatch

Mr. HATCH

Mr. HATCH. I will try not to interrupt the Senator anymore, but the point I was making with the briefs in the Supreme Court--15 of them and more--is that there is a record from which you certainly can determine legal reasoning, as well as an extensive stack of records of the Judiciary Committee hearings. And let me say this. Those hearings were conducted by none other than the Senator's colleague from New York, Senator Schumer, and other Democrat Senators who said the hearings were fairly conducted. Is the Senator aware of all of that?

Mr. HATCH. Mr. President, I will speak more to the constitutional issues later. I have to say that I totally disagree with the distinguished Senator from New York, much as I respect her. I don't think her analysis of the Constitution is anywhere near accurate. Second, I was told by people for whom I have great respect that when the vote came up, when they were discussing whether or not the Hispanic Caucus in the House, all Democrats, were going to oppose Miguel Estrada, there was almost an equal split of those who thought it was inadvisable to do that. Of course, after the majority makes that decision, I suppose they went along with that. But that was my understanding. If it is incorrect, I would be happy to be corrected. I also want to make it clear that the three Republican Hispanic Members of the House--all three very outstanding individuals, who have stood up for Hispanics all of their careers, all three of them speak fluent Spanish--they were basically not allowed to meet with the Democratic Hispanic task force or caucus in the House, and they are totally in favor of Miguel Estrada. Having said those few things, I want to take a moment to talk about what we are seeing on the nomination of Miguel Estrada. What we are seeing is just another step in a campaign to stall action on President Bush's judicial nominees. It has gotten to the point that the tactics that some of my Democratic colleagues are using are so predictable that it is as if they are working from a handbook. I suspect that this handbook had its origins in the Democrats' April 2001 retreat, where leading liberal law professors--of course, most of the law schools in this country are filled with leading liberal law professors, or at least liberal law professors--they urged the Democrats in that conference to change the ground rules on judicial confirmations. What resulted from this retreat is something that can be called--if you will notice this chart--the Senate Democrats' ``weapons of mass obstruction'' handbook. Let's take a look at some of the weapons in this handbook. Let me turn to the first bullet on the chart. The first weapon suggested by these liberal law professors was to bottle up nominees in committee. We have seen a lot of that in the last 2 years, is all I can say, especially with regard to circuit court nominees. They have allowed a significant number of district court nominees to go through. These are the trial courts, where it is very unlikely to get into the major questions of law that have to be decided by appellate courts, although they certainly are important. Since the judiciary is a separate, coequal branch of government to the President and to this Congress, this is important stuff. But their first weapon in their handbook was to bottle up nominees in committee. When control of the Senate shifted to the Democrats in June 2001, we saw an immediate halt of nomination activity in the Judiciary Committee, especially of circuit court of appeals nominees. The President was not being treated as other Presidents have been. Even though other committees held nomination hearings prior to reorganization, and even though the Judiciary Committee held other hearings, no nomination hearings were held for more than a month, despite the fact of a looming vacancy crisis and plenty of nominees awaiting a hearing. In fact, as we stand in the Chamber right now, we have a crisis of around 25 or 26 emergency seats, most of them circuit court of appeals seats, in this country today. It is a judicial crisis where people cannot get their cases decided. Then, once we did start considering nominees, the committee considered only one circuit court nominee at a time. When I was chairman during the Clinton administration, I considered more than one circuit nominee at 11 different hearings. But not once during the 107th Congress did the Democrats hold a hearing on more than one circuit nominee at a time. So bottling them up in committee has been a definite practice that came out of that retreat. The point is, as I have been making it here, the first weapon in the Democrats' handbook--that of bottling up nominees in committee--was something that worked only as long as the Democrats controlled the committee. Since this is no longer the case, and we are now holding orderly hearings, fair hearings, with expedition, because the Republicans were fortunate enough to be able to take over control of the Senate, the President is now being treated fairly, as I believe I treated President Clinton in almost every instance--in fact, in every instance as far as I was concerned. We put through 377 Clinton judges, the second highest total in the history of the country for any President, and only five less than the highest total of Ronald Reagan. And Reagan had 6 years of a Republican--his own party--Senate to help him. President Clinton had 6 years with an opposition party--the Republicans--to help him. And we did. You can point to some instances where I wish we had done better, but as far as totality, as far as getting it done, we did the job for President Clinton, and we treated him fairly. And he, I think, knows it. Let's look at some of the other weapons they have used that came out of that retreat. One of the most potent weapons of mass obstruction has been to try to inject ideology into the confirmation process--yes, try to inject ideology into the confirmation process. Miguel Estrada's nomination is a prime example of how that has worked. Some of my Democratic colleagues claim they oppose Mr. Estrada's nomination because he allegedly was not responsive to their questions at his hearing. I think we just heard an hour's worth of that. This is a laughable assertion. Mr. Estrada's hearing, which was held while the Democrats controlled the committee, and chaired by the distinguished other Senator from New York, Mr. Schumer, lasted all day. Mr. Estrada was asked dozens and dozens of questions, all of which he answered. The real problem that some of my Democratic colleagues have with Mr. Estrada is not that he did not answer their questions but that his answers did not give them any reason to oppose him. That is what the real problem is here. He testified that he would follow binding precedent--what more could you ask of a circuit court of appeals nominee--that nothing in his personal views would interfere with his ability to follow the law. What more could you ask of a circuit court of appeals nominee? For some of my Democratic colleagues, this is not enough. They want to delve into Mr. Estrada's ideology to understand his personal views on whether Supreme Court cases were correctly decided, and use those personal views as the yardstick by which they measure whether he is worthy of confirmation.

Mr. HATCH. Madam President, I have heard so much misinformation about Mr. Estrada here on the floor of the Senate for the past few days, I hardly know where to begin to correct the record. It is simply amazing to me that some of my Democratic colleagues claim they cannot support Mr. Estrada because he lacks judicial experience or because he hasn't been a law professor or because he has not published extensively. Let me remind my colleagues there are more than a few nominees confirmed as circuit judges whose record did not include judicial experience or extensive scholarly writings but whom they managed to vote for and confirm anyway. Yesterday I listed 26 circuit court of appeals judges who had no judicial experience when they were nominated but were confirmed anyway. That is just a small fraction of all those who never had judicial experience before the last number of years. Don't get me wrong. Even though they have had no judicial experience, these are all very qualified judges who deserved confirmation. But I don't believe any of them clerked for a Supreme Court Justice or argued 15 cases before the United States Supreme Court, as has Mr. Estrada. Take, for example, Clinton Ninth Circuit nominee Sidney Thomas. He graduated from the University of Montana Law School in 1978 and went straight into private practice with a firm in Billings, where he remained for his entire pre-judicial career. Of the 10 writings or speeches he listed in his questionnaire, four of them consisted of outlines of presentations. The fifth was copyrighted while he was still in college and so could not possibly present his legal views. Still another appears to be a study guide for a college class he taught. Given this record, I would not have expected a review of the hearings transcript to reveal demands by my Democratic colleagues for access to internal memoranda Judge Thomas prepared at his law firm, memoranda that are commonly known as attorney work product. Instead, a review of his hearing transcript reveals a grand total of less than two pages of questions, all of them asked by a Republican committee member. The Democratic committee member declined to ask Judge Thomas any questions, despite a record that includes no judicial experience and limited published writings. Let me read you some of the exacting questions Judge Thomas was asked at his confirmation hearing and some of the answers he gave. He was asked: Would you state in detail your best independent legal judgments with regard to existing Supreme Court precedent on the constitutionality of capital punishment? Judge Thomas replied: Well, I believe that the Supreme Court has spoken, I think quite appropriately, on the death penalty. I do not possess any moral or religious convictions which would cause me to not apply the death penalty in an appropriate case. This answer was apparently sufficient to satisfy the members of the committee that Judge Thomas would follow the law regardless of his personal convictions about the death penalty. But when Miguel Estrada gave similar answers to questions from Democratic committee members, he was accused of not being forthcoming. That is a double standard: We will treat President Clinton's nominees differently than we will treat President Bush's nominees. Judge Thomas was also asked: Do you believe the Federal Constitution contains . . . a right to privacy? He replied: Well, the Supreme Court, again, has spoken on that. There is no explicit right to privacy in the Federal Constitution. Montana has a constitutional protection for privacy. That is another area where I think the appellate courts have to proceed very carefully in light of the Supreme Court precedent in the area. There were no followup questions demanding to know his personal opinion on whether there is a right to privacy in the Constitution. His acknowledgement of controlling Supreme Court precedent, coupled with his statement that ``courts ought to move very cautiously'' in this area, were deemed sufficient to confirm him, as I think they should have been. I could go on to discuss other confirmed circuit judges with backgrounds similar to Judge Thomas's, but I think the point is clear: Miguel Estrada is being held to a different standard, even though his qualifications are similar to--or exceed--those of other confirmed circuit court of appeals judges. Let me next turn to the allegation that Mr. Estrada was not sufficiently responsive to questions he was asked at his hearing. Let's get to the heart of the matter. The real complaint of some of my Democratic colleagues is that no plausible reason to oppose Mr. Estrada's nomination exists. But instead of saying this, they complain that Mr. Estrada refused to criticize the reasoning of settled Supreme Court precedent. Of course, if Mr. Estrada is confirmed as a lower court judge, he will be bound to follow Supreme Court precedent regardless of whether he is critical of it. This was what he testified he would do if confirmed, and this was the only responsible answer to the questions he was asked about specific Supreme Court cases. During the course of this debate, I have already mentioned the statements Lloyd Cutler has made on this point, but I believe they are worth repeating because some of my Democratic colleagues keep resurrecting the spurious allegation that Mr. Estrada was not forthcoming at his hearing. Mr. Cutler, as we all know, served this country well as counsel to Presidents Carter and Clinton. He also served on two national commissions that addressed problems in the confirmation process. This chart I have in the Chamber shows what he actually said: Candidates should decline to reply when efforts are made to find out how they would decide a particular case. That is the leading Democrat lawyer in this town. He has been Chief Counsel to two Presidents, two Democratic Presidents. He is highly regarded as a constitutional expert and a great lawyer not only in the area of Washington, DC, but throughout the country. He is a fine man. I have always respected him, and I do today. So regarding judicial nominees, he stated, in unequivocal terms, that: Candidates should decline to reply when efforts are made to find out how they would decide a particular case. In his opinion: What is most important is the appointment of judges who are learned in the law, who are conscientious in their work ethic, and who possess what lawyers describe as ``judicial temperament.'' Mr. Estrada's academic achievement, his professional accomplishments, the letters of support we have received from his colleagues--both Democrat and Republican--and his unanimously well-qualified, highest rating by the American Bar Association, all indicate that Mr. Estrada fits this description and deserves our vote of confirmation. At the same hearing at which Mr. Cutler made his statements about the appropriate scope of the inquiry for confirming judicial nominees, another legal luminary, Boyden Gray, testified. Mr. Gray, of course, served as White House Counsel in the first Bush administration. During his testimony, he told us that two Democratic Senators, who are former Judiciary Committee chairmen, met with him very early in the administration to let him know in no uncertain terms that if the White House were caught asking any potential nominee any questions about specific cases, that nominee would be flatly rejected. Now, that is arrogance at its height, to tell Boyden Gray that or to have that attitude. Surely, the White House should be able to talk to their potential nominees about what their viewpoints are before they nominate them. On the other hand, Mr. Gray, of course, is one of the most respected people in Utah. Again, Boyden Gray is one of the great lawyers in Washington; like Mr. Cutler, he is highly respected, has been in very responsible positions, and has fulfilled his service to the U.S. Government very well. As Mr. Gray pointed out, that same philosophy is reflected in the Judiciary Committee questionnaire, which all judicial nominees must complete before the committee will act on their nominations. The questionnaire asked the following: Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific case, legal issue, or question in a manner that could reasonably be interpreted as asking or seeking a commitment as to how you would rule on such a case, issue or question? The clear goal of this question is to deter any White House from getting commitments from potential nominees on how they would rule on specific cases, or commitments that they would overrule certain Supreme Court decisions. I happen to know the Republican White Houses have acted honorably with regard to this responsibility. I remember during the Reagan years, some of our friends on the other side were constantly questioning whether the White House was trying to influence its judicial nominees during the Reagan administration to vote a certain way once they got on the courts. I happen to know that that was totally irresponsible on the part of our colleagues because the person who vetted all of these nominees happened to be a former staffer of mine who is now on the Michigan State Supreme Court and one of the great jurists of this country. I know he never asked or told people what they should be doing with regard to their future, after confirmation, on any particular court. It now appears that some Senate Democrats want to forbid the White House from asking nominees how they would rule on specific issues while reserving that right for themselves. Call it what you will, but this is a double standard if I have ever seen one. More fundamentally, it threatens the very independence of the Federal judiciary that our constitutional system of checks and balances was designed to preserve. I cannot believe some of the questions that have been asked and some of the statements that have been made about how unresponsive Miguel Estrada was when they were asking him questions about how he would rule when he became a member of the Circuit Court of Appeals for the District of Columbia. Now, they might say, ``We did not directly ask that,'' but that is what was behind it. A number of Senators on the other side have indicated they need to know the philosophy of these nominees. I think that is irrelevant, as long as the philosophy is that they will uphold the precedents of the courts above them. And to be honest with you, this is going way too far in some ways. Let's face it, too many questions in the confirmation hearings of President Bush's judicial nominees seem calculated politically to manipulate the judicial selection process and to frustrate the appointment of judges who would refuse to follow a potentially popular course when the Constitution and settled judicial precedent provide otherwise. Miguel Estrada was right not to fall into the trap of criticizing particular Supreme Court cases that he may be called upon to rely upon as a sitting Federal judge. My colleagues should be commending him for this, not proffering it as a reason to vote against his confirmation. Unfortunately, that is basically their argument, that they should vote against his confirmation because he has abided by what really are rules that have long been time honored in the Senate. I yield the floor. Madam President, I suggest the absence of a quorum.

Mr. HATCH. Sure.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the injunction of secrecy be removed from the following treaty transmitted to the Senate on February 11, 2003, by the President of the United States: Amendments to the 1987 Treaty on Fisheries with Pacific Island States (Treaty Document No. 108-2). I further ask that the treaty be considered as having been read the first time; that it be referred, with accompanying papers, to the Committee on Foreign Relations and ordered to be printed; and that the President's message be printed in the Record.

Mr. HATCH

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

Mr. HATCH. Mr. President, I appreciate my colleague. I agree with him; there is a problem here. I don't think there is any question about it. There is a problem of whether we are going to treat a person fairly. I appreciate my colleague in his own characteristic quiet and cautious and decent way. He has outlined what he feels. Think about it. Where were the questions during the time they controlled the Senate right up through the middle of January? They didn't ask any further questions. Only two Senators gave written questions. They could have held an additional hearing. They did not do it. I guess they rolled the dice, figuring they were going to win anyway, and they would kill this nomination no matter what happened. The fact is they lost, and now the Republicans are in control of the Senate, and we want to see this man get fair treatment. I admit there is a problem. But the Constitution doesn't say the Senate should advise and filibuster these nominations. It says the Senate should advise and consent to these nominations. That is a far cry from filibustering. I question a filibuster in the case of judges in the third branch of Government. They are a coequal branch of Government. With regard to the memos, Mr. Estrada said it is fine with him if they give up the memos. He doesn't have anything to hide. He is proud of his work. But the Justice Department, in its wisdom, says we don't give up these kinds of memos; it is a bad precedent, and we are not going to do it. So why blame Estrada for that? Why hide behind that when Estrada isn't the one causing the problem. I happen to agree with the Justice Department. I don't think they should give up confidential memoranda that could chill the work that goes on in the Solicitor General's Office. I don't see how anybody with a straight face could make that argument as much as it has been made with straight faces today.

Mr. HATCH. He was a law clerk to Amalya Kearse on the Second Circuit Court of Appeals and law clerk to Justice Kennedy. He had lots of experience on the judiciary. I am glad the Senator pointed that out. The Senate Democratic policy book on the nomination: Mr. Estrada often refused to answer questions. We are getting this bullcorn on the floor today, and we have gotten it every day we have been here. They don't seem to listen to the facts. Mr. Estrada often refused to answer questions, or provided extremely evasive answers during his confirmation hearing. You should have heard all of their nominees, whom we allowed to go through. OK. It goes on to say: He declined to answer all questions about his judicial philosophy and his views on important Supreme Court cases. For example, when Senator Schumer asked Mr. Estrada to name a single case from the entire history of the Supreme Court law that he disagreed with, Mr. Estrada refused. My goodness. The policy statement says: Other judicial nominees of President Bush, including some with significant ``paper trails, have discussed their jurisprudential views extensively in hearings before the Senate Judiciary Committee. Just last year, Michael McConnell-- You heard Senator Dodd bring this up-- confirmed to the 10th Circuit, thoroughly discussed his views on such subjects as Roe v. Wade and the Supreme Court's recent ``federalism'' decisions limiting the authority of Congress. Here is what People for the American Way have to say: Mr. Estrada refused to reveal his jurisprudential views . . . in response to questions by Senators. For example, despite repeated attempts by Senator Schumer, he refused to identify even a single Supreme Court decision over the past 40 years with which he disagrees. At least they got that right--the 40 years part--because we have had Senator after Senator come here and say he refused to talk about any decisions with which he disagreed. Wouldn't he have disagreed with Dred Scott or Plessy v. Ferguson? Those were a long time before the 40 years that Senator Schumer asked about. But let's go a little further. People for the American Way says: Estrada refused to answer key questions at his Senate Judiciary Committee hearing about his judicial philosophy, such as his views on important Supreme Court decisions. For example, he refused to name a single Supreme Court decision in the last 50 years that he thought was wrong. Then they go on to say this. This is again a letter from Ralph Neas. Other judicial nominees of President Bush, including some with significant ``paper trails have discussed their jurisprudential views extensively in hearings before the Senate Judiciary Committee. Just last year, Michael McConnell, who was recently confirmed to the Court of Appeals for the 10th circuit, thoroughly discussed his views on such subjects as Roe v. Wade and the Supreme Court's recent federalism or States rights decisions limiting the authority of Congress. That was a letter dated January 24, 2002. Let me give you the facts to show how wrong they are. That is what is killing me, that my colleagues would misrepresent like this on the floor of the Senate and misrepresent to their own colleagues. That is what is killing me. Here are the facts. Cannon 5A(3)(d) of the American Bar Association's Model Code of Judicial Conduct states that prospective judges ``shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of office . . . [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court. Justice Thurgood Marshall made the same point in 1967 when he refused to answer questions about the fifth amendment. I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed and sit on the Court when a Fifth Amendment case comes up, I will have to disqualify myself. Or Lloyd Cutler, who is one of the great lawyers in Washington, DC, and, frankly, in the country: Lloyd Cutler, President Clinton's former White House Counsel, testified before the Senate Judiciary Committee last year that ``it would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong, it is a matter of political science; and also serves to weaken public confidence in the courts.'' Think about it. Think about it. The reason Mike McConnell had to answer very carefully is that he had written so extensively that he pretty well had to acknowledge that that is what he wrote on Roe v. Wade. He was highly critical of Roe v. Wade. I respect my colleagues for accepting Professor McConnell. On the other hand, he had 305, many of whom were the most liberal law professors in the country, supporting him because he is so honest and decent and smart, rated as one of the two or three top constitutional experts in the country. Just think about it. These kind of things bother me. Let me just talk about the SG memo, the Solicitor General memos we have heard so much about here. This is what the Democratic Policy Statement says: Due to Mr. Estrada's almost nonexistent paper trail, the Judiciary Committee Democrats have tried to obtain legal memoranda he wrote while serve at DOJ. DOJ has refused to provide these documents which presumably would show Mr. Estrada's constitutional analysis of cases and statutes and give members a window into his judicial reasoning. Here is what People for the American Way said in a letter from Ralph Neas dated January 29: As several Senators have explained, Mr. Estrada has a limited paper trail, particularly because the Justice Department has refused to release the legal memoranda he wrote while serving in the Department. Let's get the real facts. All seven living former Solicitors General of the United States--Seth Waxman, Drew Days III, Walter Dellinger, Kenneth Starr, Charles Fried, and Robert Bork--have written the Judiciary Committee defending the need to keep such documents confidential. Four of those are leading Democrats. The letter noted that the SG, the Solicitors General: relied on frank, honest and thorough advice from their staff attorneys like Mr. Estrada-- And 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. I have said that on the floor of the Senate so many times I am getting sick of saying it. Yet I have had Democrats tell me today: You mean seven Solicitors General said that, four of whom are Democrats? They were amazed to hear that. Why did the people for the American Way say that? Because they are partisans. They are left-wing partisans. I don't blame them. They believe in that left-wing philosophy of theirs, and I respect people who believe in their philosophies. The ones I don't respect are those who distort the record. That is unfortunate. That is what they have been doing. On May 28, 2002, the Washington Post editorialized that the committee's request for attorney 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 Post editorial: Particularly in elite government offices such as that of the solicitor general, lawyers need to be able 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. These people in the Solicitor's Office are generally the top lawyers around. Many of them are going to serve in other positions in the Government. A number of them are going to be judges. We just named eight of them. There are seven former Deputy Assistants for the Solicitor General now serving on Federal circuit courts of appeals. None had any prior judicial experience, and the committee did not ask the Justice Department to turn over any confidential internal memoranda those nominees prepared while serving in the Solicitor General's Office. Why is Miguel Estrada being treated like this? Why is he being treated so unfairly and differently from anybody else? Why is he being treated differently than those seven others, many of whom are Democrats? Is there a double standard here? You doggone right there is. It is because he is a Hispanic conservative Republican. That is why-- because they cannot pin anything on him. When you can't pin something on somebody, you do fishing expeditions to find any amount of dirt you can get. A fishing expedition into confidential memoranda in the Solicitor General's Office should not be allowed, and it has not been. Let me go back to the Democrat policy statement: Lack of Support From Hispanic and Other Organizations Mr. Estrada is opposed by, among others, the following organizations: Congressional Hispanic Caucus, Congressional Black Caucus, Mexican American Legal Defense and Education Fund, Puerto Rican Legal Defense and Education Fund, Leadership Conference on Civil Rights, AFL-CIO, Sierra Club, NOW, National Women's Law Center, NARAL and SEIU. On January 30, People for the American Way again; this is a press release rather than a letter: Neas noted that leading Hispanic organizations opposing Estrada's confirmation--including the Congressional Hispanic Caucus, Mexican American Legal Defense and Education Fund, Puerto Rican Legal Defense and Education Fund--have been joined in opposition by a diverse coalition of environmental protection, women's rights, and other public interest groups. But they don't tell you that the following groups, among others, have announced their support for Estrada: League of United Latin American Citizens (LULAC) (nation's oldest and largest Hispanic civil rights organization); U.S. Hispanic Chamber of Commerce; Hispanic National Bar Association; Hispanic Business Roundtable; the Latino Coalition; National Association of Small Disadvantaged Businesses; Mexican American Grocers Association; and the Hispanic Contractors of America, Inc. Of course, you can see many other things. There are so many groups that support him. I attended a press conference today where the head of LULAC was so outraged at the double standard and the way Miguel Estrada is being treated--and, I might add, LULAC is not a conservative organization but it is a respected organization, and I have always respected them. Its leader ripped into what is going on over on the other side of the floor like you can't believe. He is one of the leading Hispanics in America, and rightfully so. Let me tell you, I think the Hispanic people are starting to catch on--that it is outrageous the way this man is being treated. He is being treated with a double standard. He is being mistreated with a double standard. I must say that I was a little surprised when I saw the similarities between the Democrats' handbook on Mr. Estrada and the propaganda being circulate by People for the American Way. I guess it's now clear where my Democratic colleagues' talking points are coming from. Maybe my Democratic colleague should examine a little more closely the euphemistically-named People for the American Way. Over the past two years, I have watched the war of propaganda waged against President Bush's judicial nominees. I have seen the records of good men and women distorted and smeared simply because they are the nominees of a conservative President. And I have decried the pertpetrtors of these smear campaigns who have nothing to lose by their misrepresentations but everything to gain when it come to raising money to promote their left-wing agenda. I am taking about the liberal Washington special interest groups that are the ones manufacturing the weapons of mass obstruction. That is what they are--weapons of mass obstruction in this case, and others as well. One of these groups, People for the American Way, claims that ``Americans could lose fundamental rights, freedoms, and protections that they have enjoyed for decades'' if the Senate confirms Miguel Estrada. How low can you get? When I learned this, I said to myself, with a name like People for the American Way, maybe I should rethink my position on the Estrada nomination. I began thinking, Who are these folks who call themselves People for the American Way and who want me to oppose Miguel Estrada? Obviously, I am not a member of their organization. But, given its name, I thought to myself, maybe I should look into joining it. After all, I am a person, and I am all for the American way--which, in my book, stands for truth, civility, fidelity, and justice. So I asked around my neighborhood and, well, it doesn't appear that any of my neighbors are members. My family and friends aren't members. Nor does it appear that any of my veteran friends are members. So who are they, these People for the American Way? I went to their Web site to find out. It appears that they are a very busy bunch of people who raise money for left-wing causes. Indeed, their Web page on President Bush's judicial nominees contained four separate solicitations for donations, four on one page. Profiting at the expense of trashing other people's reputation may qualify for the National Enquirer way--but it is not the American way. Of course, this organization should be free to raise money and exercise its first amendment rights. But the Senate is not obligated to do its bidding or jump when it says so. Unfortunately, you can see where a lot of the language is coming from--People for the American Way over and over. It is false. So I became more curious. Maybe if I learned who its board members are I would be convinced that they truly are people who stand for the American Way. I did a little more surfing on this Web site and found out that People for the American Way, board members, include a Hollywood actor. Gee, I think that is great--to have a Hollywood actor acting in politics. We certainly have a few of them, don't we? The board members include a record executive, a Democratic lobbyist, and a former Clinton White House staffer who was the center of the FALN terrorist clemency debacle. Are these mainstream Americans? Are these people to whom we defer on what qualifies as the American way? Maybe in Hollywood or on the Upper East Side of Manhattan. But not in my neighborhood nor, would I say, in most of America. This is something that deeply troubles me. Too many of my colleagues on the other side of the aisle appear beholden to groups such as People for the American Way. But their brand of politics includes obstructing the confirmation of qualified men and women to the Federal judiciary using any available weapon. To them, this is war, and all is fair--even if it means smearing the reputation of good, solid nominees such as Miguel Estrada. Not qualified? Give me a break. An ABA rating, unanimously well- qualified, the highest you can have; 15 U.S. Supreme Court arguments; Columbia, and Harvard Law magna cum laude; editor of the Harvard Law Review; law clerk for the U.S. Supreme Court for Justice Kennedy; and Assistant Solicitor General for both Presidents Bush and Clinton. That sort of politics is not the American way at all. I hope my colleagues on the other side of the aisle will stand up to the pressure tactics of the left and recognize that only in America can a teenage immigrant from Honduras apply his intellect and talent to rise to a Presidential appointment to our Nation's highest court. That is the American way. Only in America can someone such as Miguel Estrada come here hardly speaking English, accomplish so much and rise to the point where the President of the United States has nominated him to one of the most important courts in the country. And only in America can his record be distorted like it is being distorted by the People for the American Way, and others. They have a right, I suppose, under the first amendment to do any kind of distortions they want, but it isn't right for them to do so. I yield the floor.

Mr. HATCH. Mr. President, we are about to wrap up for this evening. I have been very disappointed with some of the debate today because it is apparent that some of our colleagues have not looked at the record, have not gotten the facts, that they are listening to People for the American Way and all the distortions that come from there. That is disturbing to me. When I was chairman of this committee for 6 years during the Clinton administration, we put through 377 Federal judges. There were a number who gave great angst to people on my side because of the differences in philosophy, differences in judging, differences in approaches to judging, but we put them through. We did not mistreat people, at least as far as I can see, not like this. It is important for people to realize what he has been through, because to hear this talk on the other side, one would think nobody ever even looked at this man; that they had not had a chance to question him; that he did not answer any questions. This binder contains the hearing record. Most hearing records would be 10 pages. This is his hearing record. My gosh, the hearing was conducted by Democrats. They controlled the whole shebang. They asked every question they wanted to, and he answered them. I can see today he did not answer them the way they wanted him to, so that they could complain about him, but he did answer them. I think he answered them better than most of their judges whom I put through answered our questions. Think about what he has been through. Before a person gets nominated, the White House does a thorough review. They do a thorough research on whether or not to nominate the person. They also interrogate the person as to whether there are any difficulties that person might have. Then if they decide they are ready to go forward, they are subject to an FBI report. They then send out the Federal Bureau of Investigation. The Federal Bureau of Investigation does a terrific investigation. Generally on a judgeship like Estrada, it is a notebook at least this thick, where they interview the nominee's friends, neighbors, business associates, enemies, wackos, crazies. This is what you call a raw FBI report. Then assuming that goes well, the administration then makes a determination whether to submit the name. As they submit the name, they generally notify--sometimes even before they submit the name--the American Bar Association. The American Bar Association then takes one of their examiners after all the FBI has done and their examiner generally is from the same area as the nominee. That examiner then goes and talks to the leading attorneys, the leading lawyers in the area--and others, if the person is so led--to determine ethical standards, legal ability, industriousness, health, strength, temperament, and so forth. All that is investigated by the ABA. Most nominees get a rating of ``qualified.'' That is a high rating. Anytime you can get the rating of ``qualified'' from the American Bar Association, you have done something pretty worthwhile. That means you have achieved in this life. I used to be pretty upset at the American Bar Association when I saw partisan politics being played with the standing committee that investigated people. The perfect illustration was in the Bork case. Unanimously well qualified when he came up for the Circuit Court of Appeals for DC, the same court we are talking about here, and just a few years later, found to be ``well qualified'' by a majority of the standing committee, and ``not qualified''--one of the leading intellects in law in the history of this country? I happen to know one or two of the people on there who voted ``not qualified'' who were very partisan Democrats and did not want a conservative like Bob Bork on the court. They won in the end. Since then we have had our problems with the ABA. When I became chairman, I took the ABA out of the process, and my argument was then, and it is still a good argument, why let one of the bar associations, even though it is the largest one, and not all the other ones, vote these people? If we let them all vote, we would never get through the process. In fact, it takes at least 2 months to 3 months for the ABA. They say they can do it in 30 days, but it is generally between 35 and 60 days to do their research. When the nominee comes up to the Judiciary Committee, all of that is submitted to the Senate Judiciary Committee. Now, the chairman and the ranking member, in particular, have staff-- skilled, honest, decent staff on both sides--who, along with the chairman and ranking member, go through all of those materials that the FBI especially has collected. Sometimes it is extremely voluminous. If we see, in going through the materials, that something has not been answered, or something has not been investigated, then we go to the FBI and say, You have to do further investigation. We want this done. And the FBI then does it, pursuant to our rules. It is, again, a very big, arduous, difficult process. Then, as in the case of Estrada, the Democrats controlled the committee. They took a total of 516 days--16 months--before they even had a hearing. Now, generally these hearings go 2 or 3 hours at the most. Estrada's hearing was virtually all day. It was conducted by the Democrats. In fact, Senator Schumer chaired the hearing. Senator Schumer, as I have said before, is no shrinking violet. He is a tough guy. He is a very smart lawyer. I value our friendship because he is always straightforward. We have a decent, good, workable relationship. But he, along with other Democrats, then came in and asked questions of Miguel Estrada. They asked voluminous questions. That is what this hearing transcript is all about. You do not see many hearing transcripts that big. I have been here almost 30 years and I have seen very few that large until there is some real problem. But in all of this hearing, out of it came their comments that he really did not answer the questions. But he did answer the questions. Some of the questions he did not want to answer because they may have involved issues that could come before him as a judge. And he was not supposed to answer those questions. Lloyd Cutler, whom I quoted over the last week many times, says they should not answer questions that involve matters that might come before them. The Circuit Court of Appeals for the District of Columbia has a tremendously broad jurisdiction. It is, like the people said, the second most important court in the country and in some ways the most important court because they have thousands of cases that the Supreme Court of the United States of America will never hear because they can only take 80 to 100 cases a year. So it is a very important court. It is a court of last resort to many. Because, as I said, those cases do not go to the Supreme Court. Not only did they ask questions all day long and ask serious questions and he gave serious answers--and if you read the transcript, you will see that--they had every crack they wanted. If they did not have it, they could have called for another day of hearing. That would have been extremely unusual for a circuit court nominee, but they could have. They controlled the committee. There would have been absolutely nothing I as ranking member on that committee could have done other than complain. I probably would not have complained. But they did not do that. They did not ask anymore questions. Now, after the full hearing and all of this time it took to do that, and all of the questions all of the Democrats asked at that time--which he answers; maybe, I admit, he did not answer the way they wanted him to, but that is not his obligation; he didn't make any mistake--he did not give them something to feed on to destroy him with. There has not been a good argument against him made since we have started this debate other than ``he did not answer the questions.'' Well, some questions did not deserve being answered, but he answered a lot of questions. Then, when the hearing is closed, they do a transcript. That is what this big document is, a transcript of that hearing. That is given to the Senators who want it. And most everyone does. Then the Senators pour over that transcript and if they see questions that were not answered in that transcript, then they have a right to write written questions. And the Senators who are really interested then write written questions for him to answer. Guess how many Democrats wrote written questions? Two. And he answered those written questions. He may not have answered them the way they wanted him to do so they could attack him and try to destroy his nomination, but he answered them. Where were all of the questions they are now raising when they had every opportunity to ask those questions? By the way, that hearing was finished in September of last year. Ordinarily when you have a hearing--not always but ordinarily--the next Judiciary Committee markup, the persons put on that Judiciary Committee markup where you can raise anything you want to. Did they put him on a markup between September and January of this year? Not on your life. They did not give him a chance. He would not have made it. And the Republicans then won control of the Senate. He would not have had a chance. So they relied on being able to kill this nomination by never calling it up. Why would they want to kill a nomination of one of the brightest young Hispanic leaders in America who is totally qualified for the Circuit Court of Appeals for the District of Columbia? I'll tell you why. It is a very simple reason, to be honest with you. It is because he is a Hispanic Republican, appointed by a Republican President. They didn't like it. And they think he is conservative. I don't know whether he is or isn't. I presume he is. I guess they think he is on the fast track to the Supreme Court, and I suspect Miguel Estrada has a chance of becoming not only the first Hispanic nominee on the Circuit Court of Appeals for the District of Columbia, but the first Hispanic on the United States Supreme Court. And he is not the right kind of Hispanic. I am the chairman of the Republican Senatorial Hispanic Task Force. That task force is made up of Democrats, Republicans, and Independents. We didn't worry about their political ideology. We worried about getting together with them and seeing what we could do to help the Hispanic community. That has been an amazingly successful Hispanic task force. I can tell you I fought very hard for Hispanics my whole Senate career, and for other people of color, other minorities as well. But the reason they don't like him is because he was appointed by a Republican; a Hispanic appointed by a Republican, who is conservative, they believe, and a Republican himself. That is enough to give him this kind of a rough time here on the floor of the Senate. But even then, they had between September of last year and January of this year. As a matter of fact, they had between September of last year and February of this year to ask even further questions if they wanted to. It would have been very improper for them to do so because he had already been questioned. They controlled, certainly right up to January, the middle of January of this year. They could have asked any questions they wanted. They could have had another hearing if they wanted. It would have been highly extraordinary and highly unusual, but that is what they could have done. It is partisanship. That is what is showing its ugly face here. As chairman of the Hispanic Task Force in the Senate, I can tell you the Hispanic people in this country, the Latino people, have helped to make this country what it is. The Latino people are basically conservative. They believe in families. They believe in staying together in their marriages. They believe in educating their children. They believe in hard work. They have built the railroads. They have helped mine the mines. They have helped build our buildings. Now we have young Hispanics such as Miguel who have gone on to professional schools and they are making a difference in this country that deserves commendation. Look what Miguel Estrada is going through for all of that, a fellow who is fulfilling the dream that America makes for us. Miguel deserves better than what he is getting. Frankly, he is being treated very unfairly. I, for one, am really disturbed by it. To filibuster Miguel Estrada with the thin line of complaints they have is, I believe, going beyond the pale; to filibuster for the first time in a true filibuster the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia because he is a Hispanic Republican who they think is conservative, appointed by a Republican President who they don't like. I am not saying all the Democrats don't like him, but the ones who are making these, I think, very unsubstantiated arguments, do not. Time after time we have refuted their arguments in absolute terms and they come right back and keep spewing out the same stuff. The reason I went through People for the American Way is because all of that stuff has been coming from People for the American Way. That, as I have said earlier today, is not the American way, to treat a human being the way this man is being treated. I warn my friends on the other side, if you are going to filibuster Miguel Estrada, then Katie bar the door because I know people on our side who are going to filibuster anybody they disagree with when the Democrats have the Presidency. That will be a sorry state of affairs. As chairman of this committee, I worked very hard to make sure some of our firebrands did not get their way in wanting to filibuster Carter and Clinton judges. And I won. I was able to convince people it was not the thing to do. I question, under the Constitution, whether you can do this. I really question it. I don't believe you can. I think it is outrageous to try. It is dangerous to try. And it is not fair to the first Hispanic nominated to the Circuit Court of Appeals for the District of Colombia, especially when they have had every chance and we are now in the 21st month for Mr. Estrada. I guess we can learn to expect that because Mr. Roberts, who is on our markup on Thursday, who is considered one of the two greatest appellate lawyers in the country--Estrada is considered one of the top appellate lawyers, but Roberts is considered one of the two greatest in the country and that's from Supreme Court Justices themselves and many others--Roberts has been sitting here for 11 years, waiting for approval by the Senate; nominated three times by two different Presidents. That is what we are going through. This is a big slowdown, trying to thwart the process because they don't like President Bush. A lot of our people didn't care too much for President Clinton. I did, but a lot of the others didn't. But that didn't stop us from treating him fairly. We have taken enough time.

Mr. HATCH. I agree with my colleague that what he was saying is true, as I am sure he intended it to be. He is a dear colleague and close friend. I agree he has an open mind with regard to nominees and has exhibited that through the years. He has been totally misled on these matters. That is something that is starting to bother me. I have run into a number of Democrat Senators who have spouted the same things that are just plain not right or factual--not everything he said. But he is correct, I did make a speech at one time where I said we should not rubber stamp these people, and I still believe that. However, this is not rubber stamping. First, it was 516 days before Miguel Estrada even got his hearing. For those who think he did not answer any questions, take a look at this hearing record. My gosh, I can hardly lift the doggone thing. He answered question after question after question. He just did not answer questions the way they wanted. I suspect, as is very evident here today, and evident throughout this matter, they do not have anything on him. The distinguished Senator from Vermont wanted to speak and I am prepared to turn the time over to him when he returns. I ask unanimous consent that after my remarks the distinguished Senator from New Jersey--how much time does the Senator desire?

Mr. HATCH. Mr. President, I tell my dear colleague from Connecticut that I think he has been very badly misled by some of the people on his side. Mr. Estrada waited over 500 days for a hearing conducted by Democrats. Senator Schumer is no shrinking violet. We all know that. He is another friend of mine, and he is no shrinking violet. They asked questions for a lengthy, extraordinary period of time compared to other nominees. This is the hearing transcript. My gosh. He answered question after question after question. But he just did not answer them the way he wanted them to answer. And he did not make any mistakes, apparently, and he did not give them anything to hang him with. There is a double standard being played here. I remember the distinguished Senator from Connecticut saying he is sorry that Miguel Estrada has to be used in this way as a bad example. He is being used all right because they cannot pin anything on him that they do not like other than they claim he did not answer the questions. Well, they had the committee. They could have asked all the questions they wanted to, and they did, and it went on for hours. I might add that he answered them. He just did not answer them the way they wanted him to answer. Talk about a double standard. Why is this Hispanic person going through this? I will tell you why. Because he is a Hispanic conservative Republican who they are afraid will tip the balance of power on the Circuit Court of Appeals for the District of Columbia and might even be considered for the Supreme Court of the United States of America. They are going to do everything they can in their power to delay his nomination. It is pathetic. It is shameful. I am sick and tired of it. I am tired of my colleagues being misled by their own colleagues. We go over and over the facts in this matter. The requests they were making of the Justice Department were for confidential documents. I will take a few minutes, because it is important, after this last speech. I know my colleague would not have said some of the things he said if he had been given the true facts. I am not disagreeing with everything he said, but I certainly disagree with an awful lot of what he said. Fact versus fiction--I will cite what has really gone on here. Their base is People for the American Way, a national abortion rights league, the Alliance for Justice--you can name 20 other far left organizations that just plain do not want any of President Bush's circuit court of appeals nominees being treated fairly. They do not want them at all. They disagree with them because they are left wing and these nominees are moderate to conservative. At least, we hope they are. Certainly, the President hopes they are. And I might add, the President does not tell them what to say up here, which was implied in the last remark. I know how they vote these judges. They do not ask them questions like that. We know darned well the minute they do our questionnaire would bring it up. We make it very clear in the questionnaire that is not supposed to happen, but, naturally, they help these people understand what is going on. Let me use People for the American Way, just for one of these left- wing groups that is almost always wrong. Here is an argument against Miguel Estrada. This is in the Senate Democratic Policy Committee briefing book on the nomination of Miguel Estrada: Lack of judicial experience. Mr. Estrada has no judicial experience. He has had no publication since a banking law article he wrote in law school. He is not a distinguished legal scholar or professor and he has never taught a class. The bulk of his career has been spent in the Solicitor General's Office and in private practice. Hey, that ain't bad right there, Solicitor General's Office and private practice. But the fact he has no judicial experience is a joke--as if that is an inhibiting factor. This is what People for the American Way said in a letter from the president, Ralph Neas, to the Senate Judiciary Committee, dated January 29, 2003: Mr. Estrada has worked for the Justice Department for more than half of his career and has never served as a judge or a magistrate or law professor and, indeed, has not published any legal writings since law school. It is virtually the same thing in the Democratic policy books. But here are the facts. Only 3 of the 18 judges confirmed to the DC Circuit since President Carter's term began in 1977 previously had judicial experience--only 3 of them of the 18 judges. Here is another fact. Democrat-appointed DC Circuit judges with no prior judicial experience include Harry Edwards--I think he is the current chief judge, isn't he, or he was--Merrick Garland, Ruth Bader Ginsburg, Abner Mikva, David Tatel, and Patricia Wald. They are all Democrats, of course. All were appointed by either Carter or Clinton and had no prior judicial experience. Why is it fair for them to be on this court with no prior judicial experience but it is not fair for Mr. Estrada? Why the double standard? My gosh, they are not treating this guy fairly at all. Let me give another fact. Several other Clinton appointees to the courts of appeals received their appointments despite having no prior judicial experience. Ninth Circuit appointees Richard Tallman, Marsha Berzon, Ronald Gould, Raymond Fisher, William Fletcher, Margaret McKeown, Sidney Thomas, and Michael Hawkins all had no judicial experience prior to taking the bench. Seven of these eight--all but Fletcher, who was a law professor--were in private practice when they were nominated by President Clinton and confirmed by the Senate. Several Supreme Court Justices had no prior judicial experience before their first appointment to the bench. Louis Brandeis spent his entire career in private practice before he was named to the Supreme Court in 1916. Byron White, a personal friend of mine, one of the great Justices, spent 14 years in private practice and 2 years in the Justice Department. He worked for the Justice Department. I guess that was an inhibiting factor before his appointment to the Court by President Kennedy in 1962. He had no prior judicial experience. Thurgood Marshall had no judicial experience when President Kennedy recess appointed him to the Second Circuit in 1961. Marshall served in private practice and as special counsel and director of the NAACP prior to his appointment. Why is Miguel Estrada, this Hispanic gentleman, being treated differently? Because he is a Hispanic conservative Republican, or at least they think he is conservative. I am not sure. Let me go back to the Democratic Policy Committee.

Mr. HATCH. I ask unanimous consent that the distinguished Senator from New Jersey immediately follow me for 30 minutes, the distinguished Senator from Colorado follow the distinguished Senator from New Jersey for 15 minutes, and that the distinguished Senator from Alabama be permitted then to speak.

Mr. HATCH. Sure.

Mr. HATCH. Is the Senator telling me no matter what I offer that Senate Democrats are going to object?

Mr. HATCH. Is the Senator aware of the list from the Justice Department?

Mr. HATCH. Is the Senator aware that I just went through that the Justice Department proved that these types of documents have never been given to anybody?

Mr. HATCH. We go over and over it.

Mr. HATCH. No, they weren't.

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

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

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

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m., Wednesday, February 12. I further ask consent that on Wednesday, following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then return to executive session to resume the consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Senate proceed to a period of morning business.

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.

Mr. HATCH

Mr. HATCH. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.