Orrin Hatch

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 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 withdraw the request.

Mr. HATCH. Mr. President, these are three excellent district court nominees. They deserve to be confirmed, as I think all of President Bush's nominees deserve to be confirmed. I recommend every Senator vote for each of these three nominees. I hope we can get other nominees to the floor as soon as possible as well. I thank my colleagues on the other side for being willing to move to these three nominees last week in our markup and to allow them to be brought up this early. I believe we will all be pleased we can vote for such excellent nominees. I hope we can move all the other judgeship nominees this President has nominated as quickly as possible. 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. I ask unanimous consent that after the first vote, the two remaining votes be no longer than 10 minutes.

Mr. HATCH. Will the Senator yield?

Mr. HATCH

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. Mr. President, I rise today to make a suggestion about how we can work more effectively to get the engine of our economy running on all of its cylinders again. We have heard a great deal this week about the current state of our economy and whether the President's growth plan, which he released this past Monday, will be effective in putting Americans who have lost their jobs back to work. Many of my colleagues on the other side of the aisle are questioning whether there is a link between high taxes and jobs. The current debate has featured quotations and commentary from some of the most prominent economists and tax experts in America. Both sides rely on knowledgeable and learned authorities to make their case that the Bush growth plan will or will not be effective in creating jobs. And, as the old saying goes, you can find an expert to prove any point you wish. But too often, I think we tend to overlook the wisdom of people on the front lines of the U.S. economy. Sometimes these people can provide answers with clarity and common sense. A few months ago, a small business owner in Moab, UT, Jeffrey Davis, sent me a very heartfelt letter, and his sentiment has stuck in my mind. I want to share it with my colleagues here today. Moab is a relatively small town in southeastern Utah whose economy is greatly dependent on tourism. Within just a few miles of this town lies some of the most spectacular scenery on Earth. However, the people who make Moab their home face the same economic realities with which everyone else in America deals. Mr. Davis owns and operates a restaurant in Moab, and over the years he has tried his hand at a few other retail businesses as well. From his letter, it is obvious he has faced both good times and bad times with his businesses. Unfortunately, the recent trends have not been positive. He currently employs between 13 and 20 people, depending upon the season, and he worries that these people, who depend on him, might find themselves out of a job if conditions do not soon improve. Mr. Davis understands all too well the pressures that face all small business owners. In his letter to me, Mr. Davis makes a point that is extremely important to the current debate on taxes and jobs--that if high taxes force the small business person to go out of business, the U.S. Government will not get any tax money. As simple and obvious as that concept sounds, I fear it might be one who is sometimes lost on those of us in Congress. Taxes and other government requirements have a real cost on small businesses in this country, many of which are right at the edge of viability. In the case of businesses in many towns in Utah and around the country, things have been really tough for the past couple of years. The one-two punch of a slowing economy and the greatly reduced travel resulting from the events of September 11 have moved many thousands of small businesses in Utah and around the Nation right to the edge of going out of business. This is especially true of businesses in towns that depend heavily on tourism, such as Moab. Tax cuts, such as the President is proposing, can make the difference between a small business surviving and it closing its doors. We must keep in mind that a high percentage of small businesses pay taxes at the individual rates. As we debate the best way to deal with our slow recovery over the next weeks, we will surely hear a great deal more from economists and experts on the macro effect of various plans and how gross domestic product will be affected by enacting one idea or another. These opinions and analyses are a very much needed and welcome part of the political process. But I urge my colleagues to not forget to also consider the wisdom of those back home in their States, who, like Jeffrey Davis of Moab, UT, face the real world effects of our decisions.

Mr. HATCH

Mr. HATCH. Apparently to the New York Times. The fact is, that case was written by the Supreme Court. He advocated, as any advocate, and he was representing, as I recall, one of the States. Another, Deborah Cook, regularly sides, as a state judge, with corporations. Oh, my goodness. You mean we have somebody who will be on the Federal bench who occasionally finds corporations might be right? What a terrible thing that must be, that corporations are right? Let's be honest about it. A lot of employment cases, almost every one that is good, is settled before it gets to court. It is only the hard cases that basically have to be tried. And in many instances, those cases are not good cases. Some on the other side seem to think, well, she sides with corporations. My gosh, she sides with who is right. And that is what we should do. Admittedly, sometimes it was a dissent, and she was known for the dissent. That is not bad. Dissenting judges play a noble role. You can disagree with cases but you cannot disagree with her integrity. No one would attack her integrity. In one case she maintained that a worker whose employer lied to him about his exposure to dangerous chemicals should not be able to sue for his injuries. That is the most oversimplification I have ever seen. It is wrong. Jay Bybee, who was heard from yesterday, has argued that United States senators should be elected by state legislators, not the voters. That is purely wrong; it is bunk. The fact is, this system we have is a good system. But we know one time Senators were elected by State legislatures. He has expounded on that. Questions have also been raised about whether, as a White House aide, Mr. Bybee attempted to suppress a criminal investigation of financing of Iraqi weapons purchases. Come on. That is totally bunk. They have not talked to Mr. Bybee and given him any consideration. That, first, should never have been disclosed. But it was. And not one person asked a question about it. I am sure they will say they were watching Colin Powell's speech. I was not. I was sitting there in committee, making sure they had a chance to ask any questions they wanted. We delayed the committee until after Colin Powell finished to enable any Democrat to come, and at least two said they would come, to come back and question. They did not come back. The committee's new leadership showed similar recklessness when it waved Miguel Estrada through on a straight party-line vote. What are we suppose to do if the other side plays politics with the judges? They did not have one good argument through the whole process, and we have had a horrendous process to begin with that took 631 days before he came to the committee. The only reason he came then was because the Republicans took control of the Senate. Thank goodness for that or he would never have come up. He would never have had a chance. We all know it around here. ``Mr. Estrada, a conservative lawyer''--who knows if he is. I don't know his ideology. I know he is a great lawyer. And I presume, as I am sure the President does, that he is probably moderate to conservative. ``Mr. Estrada, a conservative lawyer with almost no paper trail,''--I just made the case there is a paper trail on him--``refused to answer senators' questions on crucial issues like abortion.'' Give me a break. He did answer. He said that he would apply the law regardless of his personal viewpoints. This is a man who argued the case for NOW. Who knows where he stands--I don't know. All I can say is that is a ridiculous statement. I guess editorials can be ridiculous, but this one is particularly. Meanwhile, the White House refused to hand over memos Mr. Estrada wrote as a government lawyer that could have shed light on his beliefs. They wanted memos on that side because they could not find anything else to give him a rough time about. They wanted memos on that side from the Solicitor General's office and seven former Solicitors General, four of whom are Democrats, came in and said that would be a very inadvisable thing to do because it would chill the work of the Solicitor General's office. People would not give their honest opinions if they knew that later they would be pilloried with those in the Senate of the United States. Meanwhile, the White House refused to hand over memos Mr. Estrada wrote as a government lawyer that could shed light on his beliefs. Mr. Estrada said it would have been all right with him. He is proud of his work. I have to say that the greater approach would be to recognize that there are some things that have to be privileged. As I say, all seven living former Solicitors General have said that. ``The Bush administration is naturally going to nominate candidates for the bench who are more conservative than some Democrats would like,''--that is fair--``and the Republican majority in the Senate is going to approve them.'' That is fair. ``That does not mean, however, that the administration should be allowed to act without scrutiny,''-- that is not fair, because it is tremendously scrutinized--``and pack the courts with new judges who hold views that are out of whack with those of the vast majority of Americans.'' Now, come on. We fear that that is what the hasty hearing process is trying to-- Come on. Hasty--631 days before he even gets a hearing with all of that scrutinization that has gone on? It is not fair. This editorial is not fair. I call on my friends at the New York Times: be fair about the judges. I know the paper is more liberal than I, and I expect you to be more liberal. But I expect you to be fair. This business about three judges being called at one time--they have been sitting there for 631 days or more; actually more. They have been sitting there since May 9, 2001. They have been scrutinized to death. We gave every opportunity to question and every opportunity to file additional questions. By the way, I remember during the Carter years, when Senator Kennedy was chairman of the committee, if I recall correctly we had seven circuit nominees on one hearing. Is it wrong for Republicans to try to move these judges after all of these delays when they have the opportunity to do so, but not wrong for the Democrats to move the judges they want moved when they have control of the White House and the Judiciary Committee? I don't think there should be a double standard. I wanted to move as many of those May 9 judges as we could. If you will take note, the next week we had only one and that was Jay Bybee. That was this week. And next week we will probably only have one more. We are doing the best we can to try help solve judicial problems in this country. Just for the information of the New York Times, there are around 25 judicial emergencies in this country--emergencies. The Circuit Court of Appeals for the District of Columbia is one. The Sixth Circuit Court of Appeals in Ohio is another. We need to do something about that if we want justice in this country, if we want to have cases heard and tried and resolved--and that is what we want. That is what good lawyers want, fair judges who will fairly listen to their case and give them a fair trial. And these judges will. That is why they are so highly rated by the American Bar Association and that is why Miguel Estrada has the highest rating possible. I think it is time for the New York Times to be more fair in its reporting on these judges. I noticed the day before they were reporting as though Paul Bender's opinion really amounted to something. It may in some areas, but certainly I think the opinions he gave at the Solicitor's office are more important than politically motivated opinions that he gives later as a liberal Democrat--and, I might add, a very liberal Democrat. I have taken enough time. I yield the floor.

Mr. HATCH. Madam President, I am happy to be able to take the floor this morning to argue in favor of Miguel Estrada. Miguel is one of the finest lawyers in the country. He has arrived at this position and status, where he is approved by the American Bar Association as ``unanimously well qualified,'' the highest rating that the American Bar Association can give. He has had his critics, but only in generalized terms. He has had his critics who I don't think have a leg to stand on in the criticism they are raising. One of the more ridiculous assertions that I have heard about Miguel is that he was not especially or sufficiently responsive at his hearing and therefore we need to have a second hearing to evaluate him. Keep in mind, the Democrats were in control of the Judiciary Committee. They called the hearing, they controlled the hearing, they controlled the timing of the hearing, they controlled the time for questions by Senators. And at least one Democrat said the hearing was conducted in a fair and responsible manner, and I personally agree with that. Senator Schumer was the person who chaired that particular hearing. I give him a lot of credit because it was a fair hearing and they asked every question they wanted to ask. Secondly, after the hearing, on the Judiciary Committee we have a right to ask questions in writing. Only two Democrats asked questions in writing. Miguel Estrada had waited 631 days before he was given the privilege of having a hearing. Then the hearing was held. Now we are hearing the same old wornout complaints that he wasn't sufficiently responsive and that, therefore, we need a second hearing to evaluate him. Since Mr. Estrada didn't say anything at the hearing that could be used to besmirch him--that is the real problem; they could not find anything wrong with him; there is not one thing that anybody has said, other than generalizations, that has any merit at all--since they could not find anything at his hearing that could be used to criticize him, his opponents resorted to the tactic of alleging that he did not say enough. That is ridiculous. They controlled everything. They could have asked him anything, and I think they did. Now, he didn't say enough. The fact is that Mr. Estrada correctly refused to answer questions that called upon him to prejudge issues that may very well come before him as a judge. That is what every nominee with any brains has done from time immemorial. No nominee wants to have to recuse himself in a serious case later because of something he said before the Senate Judiciary Committee. Well, let me repeat that. The fact is that Mr. Estrada correctly refused to answer questions that called upon him to prejudge issues that may very well come before him as a judge. This includes his opinion on whether established precedent was correctly decided and how he would decide these cases if he were working from a clean slate. Lloyd Cutler, who was the White House chief counsel in both the Carter and Clinton administrations, and one of the premier lawyers in the country--certainly in this town--and one of the great public servants of all time, in my opinion, put it best when he said: [I]t 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. This is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts. Just as candidates should put aside their partisan political views when appointed to the bench, so too should they put aside ideology. This is Lloyd Cutler, who was chief White House counsel for Presidents Carter and Clinton. He goes on to say: To retain either is to betray dedication to the process of impartial judging. Men and women qualified by training to be judges generally do not wish to and do not indulge in partisan or ideological approaches to their work. Mr. Cutler concluded: Candidates should decline to reply when efforts are made to find out how they would decide a particular case. I agree with him, and so did all the Democrats on the committee when President Clinton's nominees came before the committee. Now all of a sudden, they are applying a double standard or a different standard to Miguel Estrada and, I might add, other Republican nominees who are coming before the committee. We should be commending Mr. Estrada for refusing to take the bait and answer these questions. Instead he is being criticized for it and, I think, in the view of any impartial observer, is being criticized unfairly for one reason: They just do not want a Republican conservative Hispanic to sit on the Circuit Court of Appeals in this country. That is wrong. We all know it is wrong, and yet that is what is behind much of the antagonism toward Mr. Estrada. As a fundamental matter, I am perplexed by the charges that Mr. Estrada's record is blank. That is what we call bullcorn out in Utah. The truth is, Mr. Estrada's record is replete with material we used to evaluate his qualifications for the bench and how he would go about deciding cases. He has written numerous complex and thorough briefs for the courts, and he has argued on a wide range of subjects. His briefs, all of which are publicly available--and I know the Democrat staffers have pored over every one of them--provide tremendous insight into his legal reasoning and thinking on constitutional and statutory interpretation. His achievement of having argued 15 cases before the U.S. Supreme Court provides a record of how he has responded to focused interrogation on the most important matters to America's highest court. The transcripts from these oral arguments are also publicly available. Where is the legitimate complaint by the other side about this blank-slate business? Still further, Mr. Estrada not only said at his hearing he would support established law, but he proved this when he wrote an amicus brief at the Solicitor General's office in support of the National Organization for Women. I do not hear any compliments from the other side on his work there. His support of a law that backed a reproductive choice side in that case indicates there is no reason to expect he would not follow Roe and Casey as a DC Circuit Court judge, and yet that has underlined many of the complaints by my friends on the other side. They are so afraid that somebody on these Circuit Courts of Appeals might possibly do something to overrule Roe v. Wade or Planned Parenthood v. Casey, two very important abortion cases. I have not heard one President Bush nominee say he or she will not uphold the laws of this land, including Roe v. Wade and Planned Parenthood v. Casey. The truth is, many on the other side have not even liked Planned Parenthood v. Casey because it does take a more moderate position with regard to abortion. Now it is the law of the land and, of course, it is one of the cases they certainly do not want to have overruled. Mr. Estrada's opponents are so eager to distort his record that they do not mention this case or any one of many other cases which reveal his legal reasoning and willingness to follow the law. It needs to be explained to everybody that not only do they have access to all these briefs he has written, both in the Supreme Court and other courts of the land, but they could have asked any question they wanted of Mr. Estrada. Any member of the committee can do that. Some may be ill-advised and not very fair, but we allow them to ask any questions they want. Then they can ask any questions in writing. In almost every case, Mr. Estrada asked to meet with individual Senators beforehand so they could meet privately and ask any questions they had. Mr. Estrada today is known all over the country by those who really understand important lawyers and understand the success of lawyers-- working with one of the most important law firms in the country as a full partner, and he has both Democrat and Republican partners. I might add, some of the leading people in support of Mr. Estrada today are Democratic attorneys--not just attorneys, but top attorneys--and we have mentioned them, from Ron Klain to Seth Waxman, Klain having been Vice President Gore's chief counsel, both as Vice President and in his campaigns. Ron Klain used to work on the Judiciary Committee as one of the top judiciary staff people. He is an excellent lawyer and a wonderful person. We all care for him. I personally care for him, and one reason I do is because he is honest, not just honest enough to say how good Miguel Estrada is and to back him, but honest in his dealings in legal matters as well. I have a lot of respect for him. Seth Waxman is one of the premier lawyers in the country, no question about it. He knows I have a lot of respect for him, and it is not just because of work on the Judiciary Committee. He is a fine lawyer, one of the best and former Solicitors General of the United States in the Clinton administration. Some have advanced the preposterous argument that Miguel Estrada is not qualified to serve on the DC Circuit because he has no prior judicial experience. That is one of the most ridiculous arguments of all. Of all the ridiculous arguments his opponents have drummed up, to me this is the most ludicrous. There are literally hundreds of examples of judicial nominees who have gone on to serve as great Federal judges at both the Court of Appeals and Supreme Court levels despite having no prior judicial experience. Chief Justice Rehnquist in his 2001 yearend report on the Federal judiciary noted: The Federal judiciary has traditionally drawn from a wide diversity of professional backgrounds with many of our well- respected judges coming from private practice. Such Justices included Louis Brandeis, who spent his whole career in private practice before he was named to the U.S. Supreme Court in 1916 and came to be known as ``the people's attorney'' for his pro bono work. Supreme Court Justice Byron White--I knew Byron White very well. He was very friendly to me throughout my career. He spent 14 years in private practice and 2 years at the Justice Department before his appointment to the Court by President Kennedy in 1962. He is a wonderful man. Byron White served this country well and his memory will always be a good memory. Byron White moved from the left to the center to even a little bit to the right on the Court, and that did not please a lot of our friends on the other side. Supreme Court Justice Thurgood Marshall had no judicial experience when President Kennedy recess-appointed him to his first judgeship in the Second Circuit Court of Appeals in 1961. Justice Marshall had served in private practice and as special counsel and director of the NAACP prior to his appointment. I do not think anybody would doubt he made a very important contribution to the jurisprudence of this country. Several well-respected members of the DC Circuit, including two of President Clinton's three appointments to that court, arrived with no prior judicial experience. Merrick Garland: I have a lot of regard for Merrick Garland. I helped to see him get through when there was some opposition to him. He was a Clinton appointee. He served at the Department of Justice and was in private practice. He was never on the bench prior to his appointment. David Tatel, also a Clinton appointee, had served in private practice for 15 years prior to his appointment. In fact, only three of 18 judges confirmed to the DC Circuit before President Carter's term began in 1977 previously served as judges. For example, Abner Mikva, appointed by President Carter, was in private practice for 16 years in Chicago, served in the Illinois Legislature and in the U.S. Congress and had no judicial experience prior to his appointment in 1979 to the Circuit Court of Appeals for the District of Columbia. Other Democrat-appointed DC Circuit judges with no prior judicial experience include Harry Edwards, Patricia Wald, and notably Ruth Bader Ginsburg, now sitting on the Supreme Court. 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--who was a law professor at Boalt Hall at Berkeley--Margaret McKeown, Sidney Thomas, and Michael Hawkins all had no judicial experience prior to taking the bench. Seven of these eight, all but Fletcher, were in private practice when they were nominated by President Clinton. Second Circuit appointees Robert Katzmann, Robert David Sack, and Chester Straub had no judicial experience prior to their appointments. Third circuit nominee Thomas Ambro, Fourth Circuit nominees Robert King and Blane Michael, and Sixth Circuit nominee Eric Clay and Karen Moore also had no prior judicial experience. What is the point? Is it that it is all right for Democrat Presidents to appoint people without prior judicial experience, who become very good judges on the bench, but it is not all right for Republican Presidents to do so? Is it all right to have more moderate-to-liberal appointees who have never had any judicial experience, but it is not all right to have moderate-to-conservative appointees appointed by a Republican President? It is all right to have liberal Hispanics appointed to the courts--I agree with that--but it is not all right to have a Republican Hispanic who, perish the thought, Democrats think may be conservative? Given this illustrious group of former practitioners like Mr. Estrada, who were not Federal judges, I find it hard to swallow that Mr. Estrada's lack of prior judicial service should somehow be counted as a strike against him. I noticed this morning in the New York Times--now, I read the New York Times regularly. It is a very important paper in this country, and I have a great deal of respect for most of the people who work at the New York Times, but their editorial department has been almost amazingly inaccurate--not almost amazingly, it has been amazingly inaccurate. Today, they have an editorial dated February 6, 2003, entitled ``Steamrolling Judicial Nominees.'' They say: The new Senate Republican majority is ushering in an era of conveyer-belt confirmations of Bush administration judicial nominations. No matter which party holds the gavel, the Federal courts are too important for the Senate to give short shrift to its constitutional role of advice and consent. I agree with that. I do not think we should give short shrift to any degree. These are important positions. They are lifetime appointments. We ought to do a thorough examination of them. So everybody understands, and I want the New York Times editorial board to understand, before a person even comes up to the Senate, that person has been evaluated by the White House, by the White House Counsel's Office, by the Justice Department. There has been a complete FBI review of that person's life. The FBI interviews just about everybody who wants to be interviewed and some who do not want to be interviewed. The interviews range from people who love the candidate or the nominee to people who hate his or her guts. There are people who make scurrilous comments, all kinds of anonymous things. These are raw reports that come into the FBI file. They report it all. Then it comes to the Judiciary Committee, and the chairman and ranking member and our staffs go through those FBI reports with a fine- tooth comb. To the credit of both the Republicans and Democrats--or Democrats and Republicans, I should say--both sides have worked very well to get rid of the chaff and to do what is in the best interest of this country and to be fair to these nominees. That is a very arduous process. The minute they decide to pick one of these people, or even maybe before sometimes, they then tell the American Bar Association--not because they have a formal role in the process but because we want to have the leading bar association in the country involved. At least the Democrats have always wanted to have them involved. I have to admit I did not want to have them involved when they were not being very fair, when there was bias and bigotry, but there is none of that now. I think they are doing a terrific job now, and as long as they do it fairly and down the middle, without bias and without being political, they are going to have my support, and I support them right now. But we then have the American Bar Association look into these people and they go right into the person's hometown. They talk to the attorneys who know him. They talk to their top attorneys whom they know are people of integrity and ability and leaders in the bar in their community. They talk to just about everybody who has any interest in the nominee, and this has all been done for Mr. Estrada. Then they sit down and they have their standing committee make an evaluation of these nominees. These evaluations are tough evaluations, especially on those who do not come out of them very well. In this case, Mr. Estrada has a ``unanimously well-qualified'' rating from the Standing Committee of the American Bar Association--I should say from the American Bar Association because they represent the whole bar. That is something that does not always happen. In fact, it does not happen very often, to have ``unanimously well-qualified.'' All of that is unbelievably difficult for the nominee. The nominee has to sign a disclosure form that just about lays bare everything in that nominee's life. One can see why some people do not even want to become judges anymore. Some of the greatest lawyers in the country, who would serve on the bench, do not want to go through this process. The investigation of the nominee includes Finances and everything, it is all laid out; cases are laid out. They are asked questions that are very intrusive into their lives. I think the questionnaire is too strong, but it has been very difficult to change over the years. That is what they go through. Then they are nominated. The Judiciary Committee then starts its work, and we go through every one of these documents. We go through that FBI report with a fine-tooth comb. If there is anything left undone, we then ask the FBI to follow up. We do not leave anything undone to the extent that we can. If there are some particular problems, we bring both sides of the Judiciary Committee together and tell them these are problems. We disclose it to the members of the Judiciary Committee. The ranking member will disclose it to his side. The Chairman discloses it to his or her side. Once that is done, then we set it for a hearing. The hearings usually do not last days at a time for circuit court nominees or district court nominees. They are generally a 1-day affair, as they should be, because we have all this information. Anybody can cull through all that information, and their staffs really do. Sometimes they are looking for dirt, looking for things they can raise that might make the process better in some cases or that might scuttle a President's nominee in other cases. There is a lot of partisanship sometimes. That is not all bad because we want the best people we can get to serve on the Federal bench in this country. This editorial indicates this is just a steamrolling of nominees. Now, that is crazy. In the case of Estrada, his nomination has been pending for 631 days, having had every aspect of his life combed over and because they cannot find anything to smear him with or find fault with--it depends on who the person is--or to criticize, all of a sudden he is being steamrolled. Well, 631 days is almost 2 years. It is way too long. I have to admit, there were some mistakes when I was chairman during the Clinton years, but nobody should doubt for a minute that President Clinton was treated fairly. President Reagan was the all-time confirmation champion with 382 judges confirmed in his 8 years, and he had a Republican Senate to help him do it. President Clinton had virtually the same number, 377, as the all-time champion, and he had 6 years of an opposition party to help him do it. I know. I was the chairman during that time, and I did everything I could personally to help the President because he was our President. There was only one person voted down in that whole time, and I have to admit I do not feel good about that. And there were less people left holding at the end than there were when Democrats had control of the committee. Going back to this editorial, because I want to help my friends at the New York Times to be a little more accurate--frankly, I think they can use some help because their editorials, especially in this area, have been awful. And this is a perfect illustration. Going to the second paragraph: Republicans on the Judiciary Committee held a single hearing last week for three controversial appeals court nominees. Just for information, that was Jeffrey Sutton. That was John Roberts, and a wonderful woman named Cook--Sutton and Cook and Bill Roberts from DC Court of Appeals. By the way, all three are well known. Sutton is one of the top appellate lawyers in the country; Roberts, who was considered if not the top, one of the two top appellate lawyers before the Supreme Court of the United States; and Cook is a Supreme Court justice in Ohio. Republicans on the Judiciary Committee held a single hearing last week for three controversial appeals court nominees. There was no way, given the format, for Senators to consider each nominee with care. We held one of the longest hearings ever on record, from 9:30 in the morning until 9:30 that night. I was willing to stay longer. I told the Committee we would finish that hearing that day and I would stay as long as it took. There was no way, given the format, for senators to consider each nominee with care. A fourth nominee had a hearing yesterday, and a fifth is likely to have one next week. What is wrong with that? They have been sitting there for months and months and they are high-quality people. They have gone through this horrendous process to get to where they have a hearing. During the Clinton years, the committee took six months or more to consider the number of appeals court nominees this committee is hearing from in two weeks. I would add that many nominees have been waiting longer, not 6 months or more, 2 years, in the ones we have called up. By the way, Mr. Roberts had been sitting there since 1990 or 1991 or 1992. I know he has been sitting there for at least 11 years. He has been nominated three times. This is too much of a rush? Give me a break. They took a lot longer than 6 months to consider the Bush nominees. The nominees being whisked through all have records that cry out for greater scrutiny. I have covered how scrutinizing we are in the committee. We do not miss anything. My friends on the other side do not miss anything. We don't either. One, Jeffrey Sutton, is a leading states' rights advocate who in 2001 persuaded the Supreme Court to rule against a nurse with breast cancer on the ground that the Americans With Disabilities Act does not apply to state employers. I was one of the authors of the Americans with Disabilities Act. I was not enthused about that case. But the fact is, it was a legitimate legal matter and he had every right to represent the States in that matter. The attitude around here is, if he represented the States, it must have been wrong. Or, if he represents big corporations, he must be wrong. Sometimes the States are right. Sometimes the corporations are right.

Mr. HATCH

Mr. HATCH. I add one thing. I believe they are entitled to their opinion but they are not entitled to their own facts. They have to live with the facts that exist. I don't see a fairness in this process. It has not been fair. It has been quite partisan, especially on Mr. Bender's part. I have been told by those who know, by my Hispanic friends, that the Congressional Democratic Hispanic Caucus was pretty split. But the majority prevailed. There was a real split over whether they should do this to Miguel Estrada. I personally believe that all these liberal groups persuaded them. I point out, where are the arguments? To say he is not qualified, when their own gold standard, the American Bar Association, says he is unanimously well qualified flies in the face of any facts. That is just my point. Where are the facts? I ask unanimous consent that a letter from Henry Bonilla, Lincoln Diaz-Balart, and Ileana Ros-Lehtinen be printed in the Record.

Mr. HATCH. I am happy to yield to the distinguished Senator.

Mr. HATCH. Let me say about Mr. Bender, I was criticized by the distinguished Senator from Massachusetts for pointing out the biases of Mr. Bender. I was accused of finding fault with him. Well, what about Mr. Bender dishonestly finding fault with Miguel Estrada? I think I more than made a case that this man has done it for partisan political purposes, and I am going to make that case over and over. If they want to keep bringing up Paul Bender, then I am going to make the case that Paul Bender has done a very bigoted, rotten thing, after having given the greatest performance reviews one could get in the Solicitor General's office. So who would you believe? I think it is important to point that out and not let anybody get away with that. I will mention one group because it has been mentioned by my friend-- and he is my friend--the distinguished Senator from Nevada. A review of the Congressional Hispanic Caucus' statement in opposition is most disappointing to me. It was issued in advance of Miguel's hearing. They did not even listen to him, and they issued it. My colleagues in the House, who have argued persuasively for a fair process, decided Miguel was not so entitled. They did not even wait until he testified to condemn him. They pronounced judgment beforehand. But that should not surprise us because the Democrat Congressional Hispanic Caucus is exactly that. It is a Democrat machine. The Republican members of the caucus who were members at one time were forced out because they did not think and act like their Democrat counterparts. There are no Republican members of the Congressional Hispanic Caucus, not one. They were forced out. The Democrat Congressional Hispanic Caucus may oppose Miguel Estrada, but the Republican Congressional Hispanic members, Lincoln Diaz-Balart, Ileana Ros-Lehtinen, Henry Bonilla, Mario Diaz- Balart, all support his confirmation. Again, I say to my colleagues on the other side, where is the beef? All this speculation about what they think that Miguel Estrada will be on the court, where is the proof? There is not any. In fact, there is proof to the contrary. So that is one reason why I have been a little bit upset today, and I think I am going to continue to be upset if these types of approaches are taken against this really fine man. We are going to defend him. We are going to defend him as the good person he is. I ask unanimous consent that the Senate now return to legislative session and that it proceed to a period for morning business.

Mr. HATCH. I will certainly try--

Mr. HATCH. I ask for the regular order.

Mr. HATCH. I will try to finish as soon as I can. As I understand it, I have the floor.

Mr. HATCH. I have been his friend for a long time, and I am going to finish this very quickly in deference to him. But he wasn't here. I did not see him at the door. And I had to make these comments because of some of the comments that were made that I thought were improper, against Mr. Estrada. And I am going to defend Mr. Estrada on the floor when these kinds of comments are made. I think it is the right thing to do. I am certainly not trying to take advantage of the distinguished Senator from Massachusetts, but I exercise my rights as a coequal Senator. Let me just finish this, and I will do it as quickly as I can. Mr. President, at the request of the Committee, Mr. Estrada provided copies of his annual performance evaluations during this 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 SG's Office, he received the highest possible rating of ``outstanding'' in every job performance category. The rating official who prepared and signed the performance reviews for 1994 to 1996 was none other than Paul Bender. Let me read a few excerpts from the evaluations that 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. . . 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 positions to others. . . All dealings, oral, and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner. I might add this doesn't sound like some radical rightwing fanatic some would portray Mr. Estrada as. He goes on to say: 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. . . Is constantly sought for advice and counsel. Inspires co- workers by example. These comments represent Mr. Bender's contemporaneous evaluation of Mr. Estrada's legal ability, judgment, temperament, and reputation for fairness and integrity. In short, 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 Mr. Estrada and hurt his chances for confirmation. The performance evaluations confirm what other Clinton Administration lawyers, and virtually every other lawyer who knows Mr. Estrada, have said about him: That is he a brilliant attorney who will make a fine federal judge. Having said all that, I apologize to my colleague from Massachusetts for having to make these comments after the comments made by the distinguished Senator from New York. But I think I would have been remiss had I not made those comments to correct the Record to show this man Bender may be a law professor at an institution in the West, but he certainly has not been very fair to Mr. Estrada. And his own reputation would lead one to believe he is not worth listening to with regard to his opinion, which I believe and I think any fair person would believe was nothing but a politically motivated smear. I yield the floor.

Mr. HATCH. I will put Seth Waxman up against Paul Bender any day, any time, anywhere. This is not some right-wing fanatic.

Mr. HATCH. I think I will only be a few more minutes.

Mr. HATCH. As I understand it, you were not here at the time and I had to make these points.

Mr. HATCH. Mr. President, just a few remarks. The distinguished Senator from Massachusetts is very concerned about this court and how judges function on it, as am I. It is a very important court. In fact, next to the Supreme Court, it is the next most important court in the country--no question about it--because the decisions they make affect almost every American in many instances. In terms of straightforward application of the law, the DC Circuit is one of the best functioning courts in the country. Recent years have seen DC circuit judges agreeing in the overwhelming majority of cases, including ones of great political significance, even when Republicans outnumbered Democrats six to four. I might also add that the DC Circuit is in the midst of a vacancy crisis unseen in recent memory. Only eight of the court's 12 authorized judgeships currently are filled. In the past 2 years, two of the court's judges have taken senior status. The DC Circuit has not been down to eight active judges since 1980. It is a crisis situation because it is extremely important. The vacancy crisis is substantially interfering with the DC Circuit's ability to decide cases in a timely fashion. As a result, litigants find themselves waiting longer and longer for the court to resolve their disputes. Because so many DC Circuit Court cases involve constitutional and administrative law, this means that the validity of challenged government policies is likely to remain in legal limbo. In the 2001-2002 term, the court had to cancel several scheduled days of oral argument. As a result, cases that would have been heard in 2001-2002 will not be heard until September of 2002 at the earliest. For the 2002-2003 term, the court will be able to hear cases on just 96 days and will be able to schedule just 336 cases. Because of the limited number of sitting days, the court's oral argument calendar is already nearly full through March of 2003. The vacancy crisis is also interfering with the operation of the court's emergency panel which hears emergency cases and various motions. Because only seven judges are now available for emergency panels, each one has to serve 6 weeks of overtime emergency duty on top of the 16 weeks he or she ordinarily serves throughout the year. The court often has been forced to constitute emergency panels with fewer than the usual complement of three judges. The chief judge of the DC Circuit, at a recent circuit conference said: If the court does not have additional judges soon, our ability to manage our workload in a timely fashion will be seriously compromised. He further explained that: . . . it is clear that the Senate's inaction is coming to jeopardize the administration of justice in this Circuit. That is important stuff. It is really important that we put Miguel Estrada on the court. We have had some comments about a few Latino groups that are known for liberal politics and have been opposed to Miguel Estrada. Let me list a few groups that support him. The following groups are just some that have announced support for him: League of United Latin American Citizens, LULAC, the Nation's oldest and largest Hispanic civil rights organization; U.S. Hispanic Chamber of Commerce; Hispanic National Bar Association; Hispanic Association of Corporate Responsibility; Association for the Advancement of Mexican Americans; MANA, a national Latina organization; Cuban American National Council; U.S.-Mexico Chamber of Commerce; Hispanic Business Roundtable; The Latino Coalition; National Association of Small Disadvantaged Businesses; Mexican American Grocers Association; Phoenix Construction Services; Hispanic Chamber of Commerce of Greater Kansas City; HEBC, Hispanic Engineers Business Corporation; Hispano Chamber of Commerce de Las Cruces; Casa Del Sinaloense; Republican National Hispanic Assembly; Hispanic Engineers Business Corporation; Hispanic Contractors of America; Charo, Community Development Corporation; Cuban American National Foundation. The League of United Latin American Citizens is the oldest Hispanic civil rights organization. Established in 1927, it has more than 700 councils and more than 120,000 individual members. The U.S. Hispanic Chamber of Commerce was established in 1979, with a network of more than 200 local chambers across the country, and it advocates on behalf of the 1.8 million Hispanic-owned businesses in the country. The Hispanics National Bar Association was established in 1972 and has more than 25,000 members, consisting of lawyers and judges. MANA, a national Latino organization, was established in 1974 to give a voice to the more than 20 million Hispanic women of all backgrounds and professions across the U.S. The AAMA, Association for the Advancement of Mexican Americans, with over 30 years of service to the community, has been ranked the ninth largest Hispanic nonprofit in the country, providing education, employment and training, health care, and related services to more than 30,000 people annually. The Cuban American National Council has served the Cuban American community of Florida for the past 23 years, through education, housing, health and human services, and employment and training. I just thought the record needed to show that Miguel Estrada has tremendous support among Hispanic people. Now, things we've heard in the debate against Miguel have been some of the saddest things I have ever witnessed. It is akin to the lioness eating her cubs--Democratic Latino community leaders turning on one of their own because he doesn't fit their definition of ``Latino.'' Among their concerns is he is a recent immigrant, he hasn't lived in this country long enough to understand the plight of Hispanic Americans, he wasn't poor enough, his family was middle class and he attended private schools, he speaks English too well, he speaks Spanish too well--these are comments made by some of the liberal Latino groups. He is not from Mexico or Puerto Rico, he is from Honduras; he didn't do the right kind of pro bono work; he sought to protect victims of crime, not criminals. Jeepers. His critics would have you believe that to be Hispanic you have to be poor, attend only inner city schools, work for the public defenders office, and never aspire to work for the Department of Justice, or to clerk for the U.S. Supreme Court. I don't think the vast majority of Hispanic people think that way. I think they are proud of Miguel Estrada, and they ought to be because he is a man who has really made something of his life, and he is still a very young man. Miguel Estrada is the American dream incarnate. I think this should be celebrated by all Americans, but certainly by Hispanic Americans, and especially Hispanic mothers and fathers who dream of a bright future for their children. Tell those mothers and fathers that in order to be considered Hispanic, your children have to remain poor, forgo a quality education, and give up their dreams of succeeding in the legal profession. That is pure bunk and everybody knows it. But these are some of the arguments that have been made against Miguel Estrada. Lest anybody think I am just saying these things because I am supporting Miguel Estrada, I have spent most of my Senate career working very closely with the Hispanic community in the United States, getting to know the issues and addressing the community's concerns through legislation. In fact, in 1986, I started the U.S. Senate Republican Conference Task Force on Hispanic Affairs to ensure that the Hispanic community had a strong voice in the Senate. Over my lifetime, I have grown to love the Hispanic culture, their people, and their history. I believe their values and culture have infused and invigorated the American dream. The Latinos I have come to know over the past 26-plus years tell me it is all about heart. It is the ``corazon.'' Frankly, I have come to feel like I personally have a Latino heart beating in my breast. That is how important this community is to me. That is how close I feel to my Hispanic brothers and sisters. I have the credentials to make that case. I happen to know Miguel Estrada. He, too, has ``corazon.'' The Hispanic community leaders I respect and admire have dedicated themselves to ensuring that people such as Miguel have the very opportunity Miguel has used to his advantage. They want Hispanics to succeed. They are not trying to force all Latinos into cookie cutter shapes. They want Hispanics to be as free to find their own way as American citizens. Organizations such as the League of United Latin American Citizens, the oldest Hispanic civil rights organization in the country, and the United States Hispanic Chamber of Commerce have existed for decades. Their mission has been to ensure that the downtrodden, the poor, the recent immigrant, and his heirs have an opportunity to succeed absent discrimination. Hector Flores, president of LULAC, and George Herrera, the Hispanic Chamber's President, work hard to get more Hispanic kids into Columbia and Harvard, more Latino youth to clerk in at the U.S. Supreme Court, to work at the Department of Justice, and to become partners of a prestigious law firm. Miguel Estrada deserves credit, rather than this constant worry that he might be too conservative, or he might be too conservative than some of these liberal groups would like. I have a lot more to say, but I will yield the floor at this point.

Mr. HATCH

Mr. HATCH. Mr. President, it is with great pleasure that I rise today to submit a resolution to designate February 11, 2003, as ``National Inventors' Day,'' together with my colleague, the Ranking Minority Member of the Judiciary Committee, Senator Leahy. The Ranking Minority Member and I have worked together on many issues related to intellectual property, and I am pleased to be joined by him in offering this resolution designating the anniversary of perhaps America's greatest inventor, Thomas Edison, as a day to honor all of America's inventors. Doing so is particularly fitting this year. Exactly one hundred years ago this year, on the shores of Kitty Hawk, NC, Orville and Wilbur Wright achieved what mankind had dreamed of for centuries: the first heavier-than-air, machine-powered flight in the world. While that flight covered only 120 feet and lasted only 12 seconds, it launched a revolution in air travel that continues to this day. Throughout history, inventions have helped people discover new worlds, build communities, and cure sickness and disease. From the Wright Brothers to Philo Farnsworth, from Thomas Edison to today's high tech entrepreneurs, America's inventors have immeasurably enriched our lives. America's technological prowess and high standard of living all stems from the creativity, determination, and entrepreneurial drive of men and women who turned dreams into realities. It is no coincidence that the United States is the most powerful technological force in history. Nor is it a coincidence that creative people from all over the world flock to our shores to pursue their dreams. Our Founding Fathers understood that an agrarian Nation would never grow to be an economic and technological giant unless there was an incentive for inventors to create and for other inventors to study and improve upon the creations. From this foresight, enshrined in Article 1 section 8 of our Constitution, came the American system of intellectual property protection, which give inventors and authors the ability to enjoy, for a limited period of time, the exclusive economic benefits of their genius. One of the most significant results of the Founders' foresight was the creation of the U.S. patent system, which today has issued over six million patents--from the light bulb to life-saving pharmaceuticals. What the patent system really comes down to is what President Lincoln, a patent holder himself, noted many years ago: it ``adds the fuel of interest to the spark of genius.'' Today intellectual property-based enterprises, patents, trademarks, and copyrights, represent the largest single sector of the American economy--almost 5 percent of the Gross Domestic Product--and employ over 4 million Americans. More than 50 percent of U.S. exports now depend on some form of IP protection. America is forever indebted to our inventors. So this year, on the centennial of mankind's first flight, I hope my colleagues will join me in recognizing February 11 as ``National Inventors' Day.''

Mr. HATCH

Mr. HATCH. I ask unanimous consent that when the Senate receives H.J. Res. 18, the continuing resolution, if it is the same text as the resolution I send to the desk, it be read the third time and passed, that the motion to reconsider be laid upon the table, and any statements relating to it be printed in the Record.