Orrin Hatch

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.

Mr. HATCH

Mr. HATCH. I sure do. I agree with that statement to this day. I agree where there are no paper trails, you should ask questions. I am sure the Senator will agree with me, the Democrats controlled the committee, they controlled the hearing that day. It was a lengthy hearing. They asked every question they wanted to ask. They weren't happy with some of the answers, but that was probably par for the course. It was, certainly, when I was chairman of the committee. But injecting ideology into the confirmation process is misguided, at best, and down right irresponsible at worst. It is not, as some Senators have suggested, essential to executing our duty of advise and consent. But do not merely take my word for it. My goodness, Heaven forbid. During the course of this debate, I have already mentioned the statements that Lloyd Cutler made on this point. Again, I mention Lloyd Cutler because both sides of this body respect him. We both know he has been an excellent servant of the people. We both know he is a great lawyer, not just in the District of Columbia but throughout the country. I have participated in forums with Lloyd Cutler, and I have nothing but respect for him. I have not always agreed with him--I have to admit that--but, by and large, we have agreed on most issues. I have already mentioned statements Lloyd Cutler has made on this point, but I believe they are worth repeating because some of my colleagues keep resurrecting the spurious allegation that Mr. Estrada was not forthcoming at his hearing. Mr. Cutler, as we all know, served this country as counsel to President Carter, and President Clinton, by the way. He also served on two national commissions that addressed problems in the confirmation process. He said: Candidates should decline to reply when efforts are made to find out how they would decide a particular case. That is just a rule that both sides have followed even before Mr. Cutler made that very erudite statement.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be discharged from further consideration of S. 277 and that the bill be referred to the Committee on Environment and Public Works.

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 these be the last speeches.

Mr. HATCH. Mr. President, we have had a robust debate on the nomination. I still remain very hopeful that we will reach a consent to have a vote on the nomination after some further reasonable period of time. I hope our colleagues on the other side will permit a vote on Miguel Estrada. I think it is the right thing to do.

Mr. HATCH. I will be happy to yield.

Mr. HATCH. I know of no other speeches.

Mr. HATCH. Mr. President, I ask unanimous consent that on Tuesday there be an additional 6 hours for debate on the Estrada nomination; provided further, that the time be equally divided between the chairman and the 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

Mr. HATCH. I yield such time as she may consume to Senator Hutchison from Texas.

Mr. HATCH. Madam President, I am pleased that we have three excellent district court nominees on the floor this evening, John Adams for the Northern District of Ohio, Robert Junell for the Western District of Texas, and Judge Samuel Otero for the Central District of California. They have been nominated to fill seats considered judicial emergencies by the U.S. Judicial Conference, so our action today is especially important. I support all of them without any reservation, and I ask my colleagues to join me in confirming their nominations. Let me say a few words about each nominee. John Adams, Jr., our nominee to the U.S. District Court for the Northern District of Ohio, has extensive experience in both the private and public sectors of the legal community. Judge Adams has 15 years of experience in private practice, and he served for 3 years as an assistant county prosecutor at the Summit County Prosecutor's Office. Since 1999, Judge Adams has served on the Court of Common Pleas for Summit County. Robert A. Junell, nominated to the U.S. District Court for the Western District of Texas, has distinguished himself both as an advocate and a legislator. Mr. Junell has over 25 years of civil litigation experience, with a specialty in personal injury law, and he has served as a member of the Texas House of Representatives since 1988. Our third nominee, Judge Samuel Otero, who has been nominated for the Central District of California, served as a Los Angeles deputy city attorney for 10 years, handling approximately 130 superior court and municipal court cases during his tenure. Since being nominated to the California bench in 1988, Judge Otero has served on both the Los Angeles Superior and Municipal Courts. I am confident that all three nominees will serve with honor and distinction. I compliment the President for putting their nominations forward and I look forward to their confirmation. I yield the floor.

Mr. HATCH. Mr. President, I ask unanimous consent that Senator Enzi of Wyoming be recognized for up to 10 minutes immediately following the final vote in the series of votes at 5:15 p.m. to speak on the Estrada nomination and that Senator Feingold be accorded at least 10 minutes immediately following Senator Enzi.

Mr. HATCH. Mr. President, I ask my dear friend if it is possible to vote on all three en bloc, with one vote being considered three separate votes?

Mr. HATCH. I ask unanimous consent that after the first vote, the two remaining votes be no longer than 10 minutes.

Mr. HATCH. I withdraw the request.

Mr. HATCH

Mr. HATCH. I was disappointed with the Paez nomination. It took too long. But there were legitimate questions that were raised that had nothing to do with race. There were various questions about cases, but it took too long. I worked very hard to get him a final vote and, as the Senator knows, I voted for him. I have to say I took a certain amount of criticism from some who felt very deeply, not against Judge Paez as a Hispanic person but because they thought he was a judicial activist, and there were a number of cases that certainly were very questionable cases and even I had problems with that. I also found Judge Paez, who--after a lengthy period of time I asked him if he would come and see me and I was very impressed with Judge Paez as a human being. It did not hurt him a bit that his family lived in Utah, and they are very good people. That certainly was very persuasive to me, too. And he is a very good person. But there were legitimate legal questions that had been raised that had to be kind of sifted through in order for me to get to a point where we could have that vote. I agree with my colleague; it took too long. I agree there have been faults on both sides throughout this process, as long as I have been on the Judiciary Committee, and there have always been people who have not made it who have been left over at the end, but I have to tell my colleague during my tenure we put through 377 Clinton judges, the second highest total, only five less than Reagan.

Mr. HATCH. I agree.

Mr. HATCH. I might add Ms. Braceras' father is a Clinton appointee to the Second Circuit Court of Appeals, and she is outraged at what is happening to Miguel Estrada. I thank my colleague for giving me those few minutes.

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

Mr. HATCH. I am grateful for that and I very much rely on that friendship on the committee. The Senator is aware, is he not, that members of the House, specifically Representative Menendez of the Congressional Hispanic Caucus, has said on several occasions that Mr. Estrada is not Hispanic enough and there have been other comments made that are very similar? I ask unanimous consent that this letter be printed in the Record at this point so that my dear friend can read it, because Ms. Braceras is not only a member of the U.S. Commission on Civil Rights but her father is a judge on the Second Circuit Court of Appeals.

Mr. HATCH. I thought the Senator asked me a question.

Mr. HATCH. She is Hispanic.

Mr. HATCH. Will the Senator yield for a point of clarification?

Mr. HATCH. Mr. President, the anonymous rumors about his temperament are just that--mean-spirited rumors that have been ginned up by liberal special interest groups that don't want to have a smart minority member of the judiciary who does not toe their special-interest line on the issues. That is exactly what is behind all of this. The fact is Mr. Estrada has overwhelming support among Hispanic organizations and the Hispanic community, and he should. I am ashamed of some of those who have just played partisan politics because they said Mr. Estrada is not Hispanic enough. Can you believe that? Some of his own fellow Hispanics say he is not Hispanic enough. He has only been here since he was 14 years of age. My gosh. The oldest Hispanic organization, the League of United Latin American Citizens--the oldest one--is behind him. The Hispanic National Bar Association--the Hispanic lawyers in this country--is behind Estrada; the United States Hispanic Chamber of Commerce--very prestigious; the Hispanic Business Roundtable; the Latino Coalition; and many other Latino organizations strongly support Estrada. I was surprised to see this antiloitering case stuff brought up here. I was surprised that there is a question raised here about antigang- loitering cases Mr. Estrada worked on. Although some have attempted to mischaracterize the statutes that were the crux of these cases as racially discriminatory, the exact opposite is true. These statutes were enacted to protect the quality of life of low-income minorities whose neighborhoods are too often devastated by drug violence. That is what was behind it. For example, according to a 1997 report issued by the Clinton Justice Department, ``Gangs have virtually overtaken certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents.'' Another Reno-era Justice Department report concluded that: From the small business owner who was literally crippled because he refused to pay protection money to the neighborhood gang to the families who are hostages within their homes living in neighborhoods ruled by predatory drug trafficking gangs, the harmful effect of gang violence is both physically and psychologically debilitating. At this hearing, Mr. Estrada told us he got involved in the City of Chicago v. Morales case at the request of the Democratic leadership of Chicago. If the distinguished Senator from Massachusetts doesn't like the fact he was representing these people in this case, and decries the fact that this may have involved some first amendment principles--which I am sure it did--then he ought to go back to his Democratic friends in the City of Chicago who were concerned about these matters. He tried this case at their request. One of the primary proponents of the Chicago ordinance was none other than Democratic Mayor Richard Daley. Let me read a few quotes about the ordinance by Mayor Daley, who the New York Times described as the ``law's fiercest advocate.'' If you are going to criticize Miguel Estrada, criticize Mayor Daley, too, except I don't think either deserves criticism. I think these quotes will dispel any notion that the law was somehow intended to hurt rather than help minority residents of Chicago. But then, again, in Miguel Estrada's case, why is it they are stooping to such a level as to criticize him on sincerely-fought cases, and especially this one where he was basically representing the Democrats in Chicago? But here is what Mayor Daly said. I might say that in November--we have a chart--Mayor Daley said: I tell you one thing, those drug dealers and gangbangers are terrorists, too. In November 2001, Mayor Daley defended his antiloitering law in the Chicago Sun-Times by making that comment. In October 2000, he observed: I don't see too many gangbangers on Lake Shore Drive. Everyone knows Lake Shore Drive is an exclusive area of Chicago. Mayor Daley is trying to solve some problems for minorities, and here it is being criticized because Miguel Estrada tried the case at their request. Again, in January 2000, Mayor Daley said: [T]hese aren't middle-class communities. These are poor communities. People want a right to survive. It is as simple as that. I could go on and on. But, instead, I ask unanimous consent that a list of quotes by Mayor Daley in support of the antigang-loitering ordinance be printed in the Record.

Mr. HATCH. Mr. President, one of the things I like about Mayor Daley is he is a really good mayor who is trying to do the best job he can, and he will do it in a bipartisan way, if he can. And here Miguel Estrada is getting criticized for supporting him. These are ordinances that were supported by members of the minority community. One thing I find ironic is the persons who criticize the antigang- loitering statutes rarely live in the neighborhoods plagued by chronic gang activity. I am not too sure anybody in the Senate is living in those types of areas. But the ones who complain generally have never had to live in those gang areas. These ordinances were enacted in direct response to pleas by communities that have members of gangs. As Mayor Daley explained: We held hearings all over the city to find out what community leaders wanted. Their message was very clear: Do whatever you have to do to satisfy the court, but get those gangbangers and dope dealers off our corners. Betty Meaks, head of the Southwest Austin Council on Chicago's West Side, lived in a neighborhood where gang members routinely sold drugs on street corners and intimidated passers-by. According to Meaks: If we don't use this law as a tool, how are we going to get these guys off the corner? What about the constitutional rights of my neighbors whose kids have to walk by that corner every day on their way to school? That is a resident of that gangbanger area and that drug-ridden area who is tired of it. Another Chicago resident, 74-year-old Emmitt Moore, saw his house sprayed with bullets during a gang turf war. Referring to the anti-gang loitering law, he said: The Constitution is supposed to protect my rights, too. What is a more basic right than feeling safe on my property or being able to walk on my street? The fact these cases were lost doesn't take away from the fact these were sincere people living in gang-ridden areas and drug-ridden areas trying to do what they could to get these problems solved. And their rights were being taken away while we talk about esoteric rights of the first amendment. Nobody believes in the first amendment more than I do. But I have to tell you there are other rights involved, too, that are also first amendment rights. These poor people living in these areas have some rights, too. The Annapolis ordinance was even a more explicit example of the underprivileged taking the initiative to combat crime in their neighborhoods. What gets me is some of these Hispanic groups that are against Miguel Estrada say he hasn't done enough in the Hispanic community. Think about these cases where he took them on--yes, in a losing cause, but took them on--trying to help these minority residents in these tough communities. There are not too many people who could have done it. Under the Annapolis ordinance, an area could be designated as a ``drug loitering free zone'' only if a neighborhood association or resident first submitted a petition to the city council. Some critics have described Mr. Estrada's Annapolis case because it challenged the NAACP's standing to bring the action against the ordinance. But, as Mr. Estrada testified at the hearing, the decision to challenge the NAACP's standing was made by other lawyers--not him--before he ever got involved in the case. Yet they are trying to pin that on him. That is the kind of ``fairness'' we have had in this whole process. I do not think anybody watching this process would say it is very fair. And you can start with Paul Bender. Either Paul Bender is right when he says Miguel is an ideologue--long after the fact--or he was right when he was ethically giving his opinion that Miguel Estrada is one of the best people who ever worked down there at the Solicitor General's Office. Which is it? I suggest to you that it was the written opinions given in the Justice Department, that are backed up by Seth Waxman and 14 other coworkers, all of whom say Miguel is great and a good person. It is amazing to me that some of these arguments are made. Although Mr. Estrada's efforts to defend the constitutionality of these statutes were unsuccessful, he may have lost the battle but he won the war, as they say. I am referring to the Supreme Court's decision in Morales. Although the Court held that the Chicago ordinance was unconstitutionally vague, Justices O'Connor and Breyer wrote a concurring opinion that gave municipalities a roadmap on how to enact constitutionally sufficient antiloitering laws. So it was not a battle that was in vain. It was a battle that ultimately will lead to resolution of those inner-city poor people's problems. And it was Miguel Estrada who took them on, took on the gangs, took on the drug dealers--and, I might add, at the request of Mayor Daley. And Mayor Daley took them on--something any good mayor I think would do, but certainly I respect Mayor Daley. Under Mayor Daley's leadership, in following the O'Connor-Breyer roadmap, Chicago enacted a new ordinance in the year 2000. So, yes, he lost the case before the Supreme Court but won it in the end, in helping these poor people in Chicago to have some protection from gangbangers and drug dealers. And he is being criticized by my colleagues on the other side during these nomination proceedings? No. The thing that is wrong with Miguel Estrada is he is not the right kind of Hispanic. He does not agree with them in everything, maybe. I don't know what his positions are in every degree, but I can tell you this: He is honest, he is smart, he is capable, he answered a lot of questions before our committee--even though he did not please all the Democrats--and he has the highest rating anybody can get, unanimously, from the American Bar Association. The problem of inner-city gang violence is so pervasive that we in Congress recognized it and addressed it in 1994. Were we bad people because we tried to address this problem that might have curtailed some people's rights to do whatever they wanted to do in our society? That is what criminal laws are about. Mr. President, 18 U.S.C. 521 mandated additional penalties of up to 10 years imprisonment for individuals convicted in certain gang-related offenses. I note that eight of my Democratic colleagues on the committee, who were Members of Congress in 1994, voted in favor of section 521. Now, where is the beef? I have been asking that all the way through-- borrowing Walter Mondale's comment. Where is the legitimate criticism of this person other than these esoteric and, I think, unfair criticisms that I have been hearing on the floor since this debate began? Calling for a vote against Estrada because he does not have any judicial experience--oh, he was a law clerk to two Federal judges, one a Supreme Court Justice. If that isn't judicial experience, then I don't know what is. He did not decide the cases, but he helped write the answers, and he sat there and watched all the judicial proceedings. And I have just listed 26 Democratic appointees to the Federal bench, none of whom had any judicial experience before we confirmed them, without raising that ridiculous issue. So the lack of judicial experience is a red herring, as are all of these issues. If you really get into them, if you really go through them, you realize there is not any substance to these arguments. Now, apparently Paul Bender told Senator Feinstein's staff that he stood by his comments, that he believes Miguel Estrada is an ideologue, and that the personal reviews that he gave, that were so laudatory and commendable about Miguel Estrada, were just boilerplate that they did for everybody. And apparently, according to what he told Senator Feinstein's staff, he stopped assigning important matters to Estrada because he was too ideological. At the request of the committee, Mr. Estrada provided copies of his annual performance evaluations during his tenure at the Solicitor General's Office. These documents cast serious doubt on Mr. Bender's allegations about Mr. Estrada. The evaluations show that during each year that Mr. Estrada worked at the Solicitor General's Office, he received the highest possible rating of ``outstanding'' in every job performance category. Either Mr. Bender was telling the truth then or he is playing politics now. The rating official who prepared and signed the performance reviews for 1994 to 1996 was none other than Mr. Bender. I will admit Mr. Bender is a very bright and intelligent man. I will admit he has been a law professor for many years. And I will admit he has many wonderful qualities. But anybody who looks at what has happened here knows he is playing partisan politics right down the line. Let me read a few excerpts from the evaluations Mr. Bender signed. They say that Mr. Estrada: States the operative facts and applicable law completely and persuasively, with record citations, and in conformance with court and office rules, and with concern for fairness, clarity, simplicity, and conciseness. I do not know any lawyer in the world who would not want to have that set of accolades written about them. He goes on to say, Miguel Estrada: Is extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to others. Or this one: All dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner. Or this one: All briefs, motions or memoranda reviewed consistently reflect no policies at variance with departmental or governmental policies or fails to discuss and analyze relevant authorities. You see, Miguel Estrada was also working for the Clinton administration. Another quote: ``is constantly sought for advice and counsel; inspires coworkers by example.'' Either Mr. Bender was telling the truth then or he isn't telling the truth now. Both of them can't be accurate. These comments represent Mr. Bender's contemporaneous evaluation of Mr. Estrada's legal ability, judgment, temperament, and reputation for fairness and integrity. These comments unmask Mr. Bender's more recent statements made after Mr. Estrada's nomination for what they are--a politically motivated effort to smear Miguel Estrada and hurt his chances for confirmation. I am disappointed in Mr. Bender, or Professor Bender, if you want me to use those terms. I am disappointed that a law professor would play this game, which is what he is doing. The performance evaluations confirm what other Clinton administration lawyers and virtually every other lawyer who knows Miguel Estrada have said about him--that he is a brilliant attorney who will make a fine Federal judge. The nature of the request of my Democratic colleagues for unfettered access to the universe of Mr. Estrada's privileged attorney-client work product is really extraordinary and unprecedented. These documents were not requested for the eight previous circuit court nominees who had worked in the Solicitor General's Office. This request was opposed by all seven living former Solicitors General in a letter to the committee citing the debilitating effect it would have on how the Department of Justice does business. Democrats Archibald Cox, Seth Waxman, Drew Days, and Walter Dellinger all signed this letter--as they should have. The Democrats have failed to show a persuasive precedent for this request. They first 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. It is not fair either. 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, 38 of whom, like Miguel Estrada, had no prior judicial experience. Eight of these nominees 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 the Department of Justice lawyer in any of those cases--in any of those cases. My Democratic colleagues have mentioned six nominees in connection with whom they claim the Department of Justice released confidential internal memoranda or documents. The Department of Justice has explained in a letter to the committee that of these nominees, the hearings of only one, Judge Bork, involved documents from his service in the Solicitor General's Office. In that case, the Department of Justice produced a limited number of documents related to specific topics of interest to the committee. They did not allow a fishing expedition into the private memoranda of employees of the Solicitor General's Office, given with good intent to their superiors so they can make decisions on behalf of our country, something that would certainly be chilled if they knew that sometime in the future their documents or these documents with their best advice could be utilized to destroy their chances of being on one of the Federal courts. 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 the assistant to the solicitor general regarding appeals, certiorari or amicus recommendations in pending cases. This is hardly the unfettered, unprecedented access to privileged work product that has been argued. In that case, the Bork case, the Department of Justice produced a limited number of documents related to specific topics of interest to the committee. 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 the assistant to the solicitor general regarding appeals, certiorari or amicus recommendations in pending cases. This is hardly the unfettered, unprecedented access to privileged work product that my Democratic colleagues now seek. As for the claim that the Department of Justice produced internal memoranda written by Seventh Circuit Judge Frank Easterbrook, DOJ has no record of producing these documents to the committee, and there is no indication that the committee ever requested those documents. So how did they come about? Probably through leaks by people who wanted to scuttle now-Judge Easterbrook's confirmation process. It is important to note that the Republicans have not used this tactic ever--never once--as much as there have been criticisms and questions about Democratic nominees through the years. In fact, during the last Congress, when Jonathan Adelstein, a former aide to Senator Daschle, was a nominee to the FCC, Republicans could have asked for all of the internal memoranda written by him, but we did not. I would like to respond to a matter that deeply troubled me at Mr. Estrada's hearing which has now been resurrected. I am appealing to my colleagues, to their sense of fairness on this matter, which I think is, frankly, serious and, frankly, outrageous. At his hearing, Miguel Estrada was asked a series of questions regarding some anonymous allegations about him that appeared in an article in the ultraliberal political magazine, The Nation. These allegations concern comments that he supposedly made to persons who came to him in search of a Supreme Court clerkship with Justice Kennedy. It is bad enough to put a witness in the impossible position of defending against anonymous allegations, but things got worse when Miguel Estrada was asked followup questions about these allegations that were so broadly worded, vague, and compound that he could not have possibly crafted a satisfactory answer under the circumstances. It has long been the policy of the committee--that is, the Judiciary Committee--instituted under the leadership of Senator Biden, chairman at the time, that we will not subject nominees to anonymous charges. Unfortunately, that is just what happened to Miguel Estrada. It is worth reminding my colleagues about Senator Biden's standard when it came to anonymous sources. He said: The nominee has the right to be confronted by his accuser so any accusation against any nominee before any committee which I chair that is not able to be made public to the nominee will not be made known to the Senate unless the individual wishes to do it all by themselves. Then it is known to the nominee. This is not a star chamber. I surely agree with Senator Biden. Here is another example of Senator Biden's policy on anonymous sources. In 1992, the Atlanta Journal-Constitution reported: Committee Chair Joseph Biden, according to his staff, felt strongly that he was not going to circulate some anonymous charge. This is a standard of fairness that the committee has always followed, and we have really gone way below the deck here. Some of my colleagues are bullying this nominee into a political game of gotcha. That is what it comes down to. More fundamentally, the anonymous allegations of The Nation are at odds with the overwhelming evidence of Mr. Estrada's fairness that we have received in letters of support and in examples of cases he has argued. I have mentioned letters from Seth Waxman and others. They are simply not credible on their face, particularly when you consider Mr. Estrada's recommendation to Justice Kennedy that he hire a law clerk who was a colleague of Mr. Estrada's in the Clinton Justice Department and who now works as a staffer for Senator Leahy, or did work up until recently. At a fundamental level, these are simply not the actions of a right- wing ideologue. That is just true. It is a shame to try to make something out of anonymous allegations that Mr. Estrada wasn't even given the privilege of trying to answer. Mr. President, I yield the floor.