Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, last night, White House Counsel Alberto Gonzales responded to the letter that Senator Daschle and I sent to the President this week, renewing the request that the Judiciary Committee made for the Justice Department work records of Mr. Estrada. This is a request that the Judiciary Committee first made nearly a year ago, and it is a request that has been made repeatedly since then. I regret that, at this point, the White House remains recalcitrant and continues to stand in the way of a solution to this impasse. For an administration that engages in lawyer-bashing at every turn, there is some irony in the fact that the White House has put a bevy of lawyers to work to compose a lawyer's brief rather than a straightforward response to Senator Daschle's good-faith effort to resolve this standoff. But the letter from Mr. Gonzales does provide some new information that is quite interesting in one respect, at least. Buried within the 15-page letter is a new admission that the Justice Department and Senate Republicans had previously refused to make. The administration has finally acknowledged that there is precedent for providing the very types of documents the Judiciary Committee requested almost a year ago in connection with Mr. Estrada's nomination. Interestingly, the administration in this letter makes no claim of legal privilege or executive privilege to withhold these documents from the Senate. Instead, the White House Counsel's Office insists on substituting its judgment for the Senate's and tells the Senate that we already have sufficient information about this nominee. We on this side of the aisle are making the simple request that judicial nominees for these lifetime positions fully and forthrightly answer legitimate questions so the Senate can make informed decisions. Even more important than this or any other nomination itself is the straightforward principle that no nominee should be rewarded with a lifetime appointment to the second highest court in the land for stonewalling the Senate and the American people. Getting a lifetime post on the Federal courts is a privilege, not a right. I have voted for many, many judges whose judicial philosophy I disagreed with, but at least I knew what their judicial philosophies were. In fact the Democratic Senate confirmed 100 of President Bush's judicial nominees by the end of last year, and I voted for nearly all of them. The same can be said for each and every Senator on this side of the aisle. I hope that after getting this letter off its chest, the administration will now begin to work with us. If they did we could end the stalemate they have created. Those of us who want to resolve this in a way that upholds the principle of the Senate being able to make an informed judgment on this and on any judicial nominees welcomed the constructive discussion on the floor yesterday that Senator Bennett initiated, about the potential for reaching agreement on making the Justice Department documents available to the Senate. I hope this is a signal that there is at least a chance that the administration will yet comply with our request, so that this standoff can be resolved. With the White House, the House and the Senate now all controlled by one party, we are already seeing an erosion of accountability. Democratic members of the Senate are standing up for the Senate's constitutional role in the installation of judges on the Federal courts. Beyond the difficulties we have encountered in obtaining straightforward answers from Mr. Estrada and in obtaining his work documents, in recent weeks the overall process of evaluating judicial candidates has begun to resemble a conveyor belt for rubber stamping nominees. The conveyor belt has been going faster and faster--so fast that the nominations have begun piling up at the end of the belt. We should be trying to minimize and not maximize those kinds of ``I Love Lucy'' moments. We have had an unprecedented hearing in which not one but three controversial circuit court nominees were considered, en bloc. In the 107th Congress, the Democratic Senate confirmed 100 of President Bush's nominees, and we did so in an orderly process and with a steady pace of hearings every single month that greatly improved on the slow and halting pace set by the previous Republican Senate in the handling of President Clinton's judicial nominees. The choice does not have to be between the slow pace of the earlier Republican Senate in the handling of President Clinton's nominees and the frenetic pace of the new Republican Senate in the handling of President Bush's nominees. We can and should find a responsible pace somewhere between those extremes. The court to which Mr. Estrada has been nominated, the Circuit Court of Appeals for the District of Columbia, has been called the second most powerful court in the land, and for good reason. This court, in particular, affects every single American in many ways, in its decisions on everything from clean air and water issues to the voting rights of Latinos and other minorities to the health and employment rights of working men and women. No circuit court in the Nation is more important to Hispanic Americans than the DC Circuit. I commend the Congressional Hispanic Caucus for the time, the effort its members have invested and the courage its members have shown in closely examining the record, in interviewing Mr. Estrada, and in offering its judgment about the importance of this nomination for the interests of Hispanic Americans everywhere. What kind of cases does this court handle, and what is at stake in the decisions it renders? There is a big hint in a front page story that ran a few days ago in Roll Call, in which leaders on the other side of the aisle are reminding lobbyists for big business groups that they have a major stake in who gets on this crucial circuit court. This process starts with the President. With a simple directive to the Justice Department, he can help the Senate resolve this. I was encouraged early in his term when the President said he wanted to be a uniter and not a divider. Yet he has sent several judicial nominations, selected foremost for their ideology, and not for their fairness, that have divided the American people and divided the Senate. And in terms of fairness, it also needs to be pointed out that the Republican Senate blocked President Clinton's nominees to this very same court. What are we asking for? It is a simple request: We ask only for sufficient answers and information so that the Senate can make informed decisions about candidates for lifetime appointments to the Federal judiciary.

Mr. LEAHY

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

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to thank my dear friend, the senior Senator from Nevada, for his comments. We have served together for a long time, as he said, on the Appropriations Committee. I have been in the Senate with several hundred Senators. I have been fortunate. Like the Senator from Nevada, I never knew I was going to be a Senator. I grew up in Montpelier, the State's capital. It had only 8,500 people. I lived almost diagonally across from the Statehouse. I remember as a child, probably about 4 years old, riding my tricycle through the halls of the Statehouse delivering newspapers to the Governor, playing on the Statehouse lawn, sliding in the snow. Suddenly one day, at the age of 34, I was being sworn in as a Senator and I think what a thrill it was. I was the junior most member of the Senate, but then I realized the best part of it is the people you get to know and serve with. Nobody has been more of a help, a mentor, a conscience for me, than the Senator from Nevada. Every morning when I come to work I look at the Capitol and I think this is a nation of 260 to 270 million Americans, so diverse, and there are only 100 of us who get a chance to serve at any given time. Only 100 Americans get a chance to serve and represent the whole country. Out of that 100, only 4 get to be the leaders of their party, the Republican leader and the deputy Republican leader, the Democratic leader, the deputy Democratic leader. I have served with a number of them, but I would say the Senator from Nevada, Senator Harry Reid, is one of the most extraordinary leaders the Senate has ever had. He has kept the old-fashioned virtue that was drilled into me by the first leader I knew, Senator Mike Mansfield. Senator Mansfield said, whatever you do--and this is far more important than how you vote--always keep your word. No Senator has a higher reputation for integrity and truth-telling than the Senator from Nevada, and that means a lot to me. I do appreciate the way he has watched the floor and brought dignity and respect to this debate. I admire him for it because, just as with the distinguished Presiding Officer, we all bring different experiences to the Senate. We all have different reasons for being here and we all have different life experiences. The distinguished Presiding Officer was a war hero. After serving, he began a business. He gained great experience in that field in his home State of Nebraska, and then he came to the Senate. The distinguished Senator from Nevada, of whom I was speaking, had varied experiences before coming to the Senate. He was a trial lawyer, a boxer, and a state official in Nevada. He even served as a Capitol police officer back in the days when many times they were chosen by the Senators of the congressional delegation from the particular State. All of these experiences of his he has brought to the Senate. Many times I have asked the distinguished Presiding Officer questions on military matters, not having had the experience of serving in the military. Considering how close he came to ending his life in Vietnam, the country has benefited by the fact he was there. I know as a result of his life being spared, I had the opportunity to gain another close and dear friend in the Senate. There are a few observations I would like to make before I go into the discussion I had earlier with both of the Senators from Utah about the administration's refusal to allow Senators to examine Mr. Estrada's writings--which, incidentally, is an unfortunate situation because Mr. Estrada told me and other members of the committee on both sides of the aisle he is perfectly willing to share and discuss his writings. He personally had no objection to his writings, his memos, his suggestions in the Department of Justice and elsewhere to be made public. He would have no objection to answering questions based upon what he wrote but, as he said, and he was very honest about this, the administration had told him he could not. Mr. Estrada said the administration told him he could not, which in itself is too bad because when this matter has come up many times before in history in connection with nominations for lifetime appointments as well as for short-term appointments, past administrations, Democratic and Republican, have allowed memoranda by Department of Justice attorneys to be examined by the Senate Judiciary Committee. I make this point speaking as one Senator, if Mr. Estrada were forthright and responsive to questions of Senators and if the administration sent these writings up and allowed Mr. Estrada to discuss them and answer questions about them--something Mr. Estrada himself has said he is perfectly willing to do--I may not like the candid and responsive answers, I may disagree with what is in the writings, but at that point I feel the questions have been answered, assuming he is forthcoming and we have the material, so then let us go ahead and vote for him or against him. But when my colleagues are going to vote for somebody on one of the most important courts in the country, at least we should do it knowing what is in the record and having meaningful, not evasive, answers to questions about his judicial philosophy, his views, and his feelings about legal decisions. Republican Presidents and Democratic Presidents have faced this question before. President Reagan, President Carter, and other Presidents did, and the material was forthcoming and the Senate then went on to make a decision based on what they knew about the nominees. This is the best way to do it. Before I discuss this precedent in more detail, I would like to note that this morning we had our third hearing in 2 weeks on the Judiciary Committee. This included the 16th nominee to receive a hearing, the fifth nominee to a circuit court in just two weeks. That is interesting because when a Democrat was President, the same Judiciary Committee chairman often took until the summer before having a hearing for these many nominees, especially this many circuit court nominees, many of whom have controversial or divisive records. I see the distinguished senior Senator from Utah on the floor. When he was chairman under a Democratic President, when the Democrat was making the nominations to the courts, it often took until the summer to have hearings for this many nominees, especially circuit court nominees. We are talking about having hearings for five circuit court nominee hearings by early February. In 1996, the Republican chairman did not hold hearings for five circuit court nominees all year. Of course, it was a Democrat President. Actually, no circuit court nominees were confirmed that year, and none of the four who were allowed a hearing were confirmed during that entire year. In 1997, when President Clinton had been in office now on his fifth year, we did not reach this number if circuit court nominees getting a hearing until September. Now the Committee has done it in just 2 weeks. It is interesting because there have been questions of partisanship. Now the Senate Judiciary Committee does in 2 weeks with a Republican President, with the same chairman, what took 9 months--more than 35 weeks--to do with a Democratic President. I think that sort of demonstrates what the partisanship is. In fact, there is a nomination hearing being held this morning for a seat that has been vacant since 1999. One part of me says good, it is about time we have had a hearing for that vacancy, but President Clinton nominated two people to that vacancy. This was to the Court of Appeals for the Tenth Circuit. One is the Honorable James Lyons who was blocked for partisan political reasons. There was an anonymous hold on the Republican side. I mention this because also coincidentally we hear a lot about somebody getting the highest rating from the American Bar Association, actually from a screening committee which is now headed by a close friend and supporter of President Bush's. This nominee of President Clinton's had the highest rating possible. He could have easily been confirmed, but anonymous holds, not open holds but anonymous holds, on the Republican side stopped it. He was not even allowed a hearing or a vote in the committee. So the President nominated a second person, Christine Arguello, a Latina nominee. She had bipartisan support. She was supported by both her home State Senators. One would think she would get at least a hearing or a vote in the committee. No. A number of people were nominated after her and were given hearings and votes, but this Hispanic American woman was not. Under Republican control of the Senate, Professor Arguello was not even given a hearing, to say nothing about a vote. Regarding the document request related to Mr. Estrada's nomination, he has told both Senator Hatch and myself, as well as several Members of the Senate, that he is perfectly willing to show us his writings and respond to them and answer questions about them, but he has been told by the administration that he cannot; the administration, however, would review those writings. They are the only ones who know whether this direct evidence of his views, the interpretation of law, is accurate or misleading--they are the only ones who have access to it and they say, basically: Trust us. In carrying out your constitutional duties of advise and consent: Trust us. Give someone a lifetime appointment of one of the most important posts in the country: Trust us.

Mr. LEAHY. I will yield on the basis that I will be allowed to retain the floor, to which I know the Senator from Utah does not object, and I want to continue then. Because of my deep respect and quarter century of friendship with the distinguished Senator from Utah, I yield.

Mr. LEAHY. Retaining my right to the floor, I ask the Senator from Utah to hear my speech because it may be that whoever he talked to at the White House may be new or may not be aware of this. Here are some of the memos past White Houses have provided us. They are still in the files here. They are pretty extensive. Included in this large volume are some of the same memos written by attorneys to then-Solicitor General Bork, as well as memos related to the nominations of Justice William Rehnquist to be Chief Justice, of Bradford Reynolds, the Reagan Associate Attorney General for Civil Rights to be Associate Attorney General and other nominees to short- term or lifetime appointments. I really do want to finish my speech, and I think that then the Senator from Utah will understand what is going on--with Mr. Reynolds, Mr. Benjamin Civiletti, in his nomination to become Attorney General, and other past nominees. I will not put them in the Record now, but if my friend from Utah will bear with me, he will see what happens on this, and I will lay out the case where this has been done over and over again in the past. This is a case where the administration asks for the Senate to advise and consent to a lifetime appointment, something that will go on well after most of us have left the Senate, but the administration does not want to provide information and memoranda relevant to this nomination. The administration has done this in both judicial and executive nominations. Even this very administration has done so in another nomination for a short-term position, but it has refused to do so in the case of Mr. Estrada. I wonder--and of course if the Senator wishes me to yield, I will--I wonder if he would give me the courtesy of hearing some of these points.

Mr. LEAHY. I do have evidence of exactly that. If the Senator would let me finish my speech, he would understand that. The current White House has disclosed to the Senate legal memorandum writing by an attorney of President George H.W. Bush's White House Counsel's Office in connection with the nomination of Jeffrey Holmstead to be Assistant Administrator of the Environmental Protection Agency, and, interestingly enough, this was a position of far less duration and importance than a lifetime judicial appointment. In Mr. Estrada's case, the White House will not provide any of the information sought. That bothers me. I wonder what is in there. They seem to be saying: We have looked at it; trust us, it is OK. Well, I remember the made-up Russian proverb that President Reagan speech writers came up with: Trust, but verify. Even though there was no such proverb, I thought it was a great saying, so I will use the same one. The administration's claim that such a request is unprecedented, as the distinguished Senator from Utah suggested, is actually wrong within the administration's own knowledge, even their own history. It is also wrong with respect to prior administrations and the confirmation history of the Judiciary Committee. What is happening is the White House seems willing to rewrite history for this case. I suspect if that is to be allowed, then the next difficult confirmation that comes up, the history will be rewritten again and the Senate will be stonewalled again. The facts, I say to my friend from Utah, are these. The Senate has requested, and past Justice Departments have provided, similar memoranda such as memoranda related to appeals, certiorari petitions, and amicus curiae--the decision to join a case as a friend of the court--written by attorneys of the Department of Justice. They have done this in connection with the nominations of Robert Bork to become Associate Justice of the Supreme Court; William Bradford Reynolds, Assistant Attorney General for the Civil Rights Division, to become Associate Attorney General; Benjamin Civiletti, nominated by President Carter to become Attorney General; Stephen Trott, nominated to become a judge in the Ninth Circuit; and then- Justice William Rehnquist, who was nominated by President Reagan to become Chief Justice--among others. I did not get a chance to go to the gym this morning, but I guess I can almost get as much exercise in picking up and holding some examples of the memoranda that have been provided by both Republican and Democratic administrations in the past, the exact same type of memoranda to the Solicitor General, as well as other similar legal memoranda, that we now ask for on Mr. Estrada. So the real red herring is to assert that there is no precedent and to claim that no such documents have never been shared with the Senate Judiciary Committee in past nominations, and to say therefore that the Senate cannot examine such documents and that they will not accommodate the committee's request. Mr. Estrada has stated, and I admire his candor in doing this, that he is proud of his memoranda and has no personal objection to us seeing his memoranda and he has no objection to answering questions based on what he wrote. The administration, however, says: We object. That objection is based on a complete rewriting of the history of such requests and past cooperation and accommodation. They have refused to allow Mr. Estrada to answer many questions and they have refused to allow the Senate to look at his memoranda. The Committee's request, however, is well within the practice of the Senate in prior administrations. What does seem to be said by the administration is we cannot ask for this because we have not asked it in relation to every judicial nominee who has ever worked at the Department. Many who worked there and who were nominated did have lengthy careers or academic writings or had no controversy about being unable to set aside deeply held beliefs, unlike the stealth candidate before us. The administration also ignored the fact that when the Senate Judiciary Committee has requested memoranda written by nominees for term and lifetime appointments who worked at the Justice Department, past Justice Departments have accommodated past Congresses upon the request. We get a lot of paperwork on nominees. Sometimes we ask for more and sometimes we ask for less, depending on the record before us. But when we have asked for it, everybody, except this administration, has allowed it and not stonewalled us. In fact, I have been here for 29 years and I do not know of a time when the Justice Department has taken such an uncooperative approach to a request for information relating to a nomination. History shows the Senate does not always seek information it has the power to seek. We could ask for a whole lot of things that would be relevant to entrusting a person with a lifetime appointment as a judge. Often we do not ask. Sometimes there does not seem to be a need for it because there is enough other information on the record. But when the requests have been made, they have been honored by prior administrations that have followed a policy of accommodation in response to a request from a co-equal branch of the Government for relevant information related to constitutional responsibilities, especially related to nominations. This administration has not taken this position. Instead, they seem to be saying: We know what is there, just trust us. Rubberstamp what we send up to you. Don't ask any questions. Be quiet little boys and girls, just approve our lifetime judges and leave us alone. The irony with all this is that they don't want to show us this material so we could make an objective analysis and not look to second hand evaluations, but they are perfectly willing to go to some of these files and take out selective pieces and give them to the supporters of the nominee and give them to the press or leak them to the press. They want to have it both ways. They are more than happy to use anything from a confidential Government file they think will help them, but they don't want to disclose the entire record because they don't want to have it in context because then the truth may hurt. If this is how the administration and Department of Justice approach our shared constitutional responsibility for the appointment to high office, how are we to have confidence in them in their other representations about so many things critical to how our Government functions and how they exercise the enormous power entrusted to them as a function of the public office they occupy? How are we to accept it when they say, We don't want to talk about this but trust us? Yet when we ask questions about things we legitimately believe could be looked at--nothing classified, nothing confidential--they say they still don't want to show us that. We talked about the performance evaluation. The administration and Republican supporters of Mr. Estrada have sought to exploit his performance evaluation. Let's go to the whole story on that. They keep saying Professor Bender gave the highest evaluation to Mr. Estrada when he was at the Department of Justice. They claim that is all you need to know. They say we can't give you anything else in the file, but we will show you this one thing. Well, this is not quite the whole story. There is a letter received from Professor Bender this week. It was sent to Senator Hatch and the members of the committee. I assumed, since Senator Hatch had been putting so much in the Record, he would probably put this in. He somehow didn't. This is what Professor Bender's letter says in part. I would like to have the entire letter printed. He says: It has come to my attention that, in responding to statements I made to the press several months ago regarding the Estrada nomination, you [Senator Hatch] have said, both to the Judiciary Committee and to the full Senate, (1) that I have since changed my opinion about the nomination, and (2) that performance evaluations of Mr. Estrada's work that I signed in 1995 and 1996, when I was Principal Deputy Solicitor General, are inconsistent with the views about the nomination that I gave to the press. I am writing this to correct those statements of yours. No. 1. I have not changed my opinion of the nomination-- That is, the adverse opinion he had, in which he opposed the nomination of Mr. Estrada. He said: I have not changed my opinion of the nomination, nor have I ever said to anyone that I had changed my opinion. . . . I have not changed that opinion in any respect. This is dated February 10, 2003. He can't be any more specific than that. He was opposed to his nomination before. He is opposed to his nomination since. Then he says, speaking of the performance evaluations of Mr. Estrada, these: . . . are not inconsistent with my published statements [of opposition to him.] To the best of my recollection, it was the policy of the Solicitor General's Office at the time to give every Assistant to the Solicitor General exactly the same performance evaluation. These things could have been printed up a month before. The language in the Performance Achievements portions of Mr. Estrada's evaluations was not written by me, nor did I fill out the Employee Appraisal Record form. Then he goes on to say: I believe that the Solicitor General's Office had the policy of giving each of the Assistants exactly the same Excellent rating each year. And he stated why? Of course. It paid them the highest salaries permitted by the Government. Everybody they hired had those highest salaries. To keep the highest salaries, they had to have the excellent rating. I ask unanimous consent to have the letter printed in the Record.

Mr. LEAHY. Mr. President, I am doing that because Professor Bender asked that this be made known to the Senate, especially as he has been quoted as having changed his mind. He still opposes Mr. Estrada. I will quote him again. He says: I have not changed my opinion of the nomination, nor have I ever said to anyone that I had changed my opinion. He makes it very clear that he feels he has been misquoted on the Senate floor. He may feel it was done inadvertently. He said, ``Someone must have inadvertently given you incorrect information about this,'' making it very clear that he was misquoted. I know what he means. It is easy to get misquoted around here. Earlier this week a Republican Senator misquoted me in the Senate Chamber. The Senator who purported to quote my words certainly could not have known that he was quoting me incorrectly. I can't believe--I would be shocked to think somebody would come here and quote me out of context or incorrectly to make a partisan point. I would be as shocked as Claude Raines was in ``Casablanca.'' So people understand, the statement I did make on June 18, 1998, was to protest the anonymous Republican hold in the consideration of the judicial nomination of Judge Sonia Sotomayor. The nomination of Judge Sonia Sotomayor was held up, as I have stated before, for months and months and months by anonymous holds. She had been nominated by President Clinton to the Second Circuit Court of Appeals. I believe she was the very first Hispanic woman to go to that court of appeals. Everybody assumed her to be a slam dunk. She had been originally appointed by President George H.W. Bush to the district court. But Republicans allowed anonymous holds and nobody on the Republican side would say who was holding her up, but they held her up. I am saying I would never do this to a judge. What I said was I would refuse to put an anonymous hold on any judge. I never have put an anonymous hold on a judge. If I wanted to delay for whatever reason a nomination, I state it on the floor as I am doing now, in the light of day, not the cloak of secrecy. The portion of my speech about anonymous holds--like some speeches I made in the years 1996, 1997, 1998, 1999, and 2000--were not heard on the other side of the aisle. That is probably why they now misquote it. I am sure it is an inadvertent misquote. I think it is because they didn't hear it. They certainly didn't hear it at the time because they continue to use the ``anonymous holds.'' It is a practice I put an end to when I was chairman of the Judiciary Committee. But when Republicans controlled the Senate in years past they held up scores of judicial nominees of President Clinton, and never allowed them to come to a vote by ``anonymous holds'' of a single Republican Senator or more than one. I am not surprised that they misquote me on the floor, because they didn't hear my speech at that time. In this case, people should understand what was happening. Judge Sonia Sotomayor's nomination was delayed by anonymous Republican holds and was on the Senate calendar for months and months. She was favorably reported by the Judiciary Committee in early March of 1998. But then her nomination was stalled without explanation or accountability on the calendar without Senate action. Even after I made my speech criticizing anonymous holds and stating that I would never put on such an anonymous hold, her nomination continued to be delayed for several more months to the very end of the session of Congress. It was actually delayed, I think, for 7 months. When it finally came up, 29 Republican Senators voted against confirmation of Judge Sonia Sotomayor for the Second Circuit. I went back and checked the Congressional Record. They are not required to, of course, but you would think after voting against a judge, or having anonymous holds on a judge for a long period, there would be at least one or two words in the Congressional Record explaining why this was done. They don't have any requirement to do that, but I think it would have been nice. If they carry out an anonymous hold like that for all of those months, you might say, Why? I mention this because there seems to be a lot being overlooked. When that same Republican Senator quoted part of a colloquy between me and the then-majority leader, Trent Lott, I suspect that he did not really recall the discussion, or he would not have had it so wrong here on the floor. I will read again what Senator Lott, the Republican leader, said at that time: [T]here are not a lot of people saying: Give us more Federal judges. They just are not. For us to be pontificating about this and gnashing, how unfair, this appointment of more Federal judges, It is just not there. . . . Some people might argue that we have plenty of Federal judges to do the job. I hope they will do that. I am saying to you, I am trying . . . but getting more Federal judges is not what I came here to do. The distinguished Presiding Officer was not in the Senate at that time. But he may recall Justice Ronnie White came from his State. The nomination of Ted Stewart to the District Court in Utah was also very controversial. A lot of the so-called ``liberal groups'' the distinguished chairman is fond of excoriating around here opposed Mr. Stewart. A lot of the same groups the distinguished senior Senator from Utah implies control things around here opposed Mr. Stewart. I voted for Mr. Stewart. I was one of those Democrats who should not be lumped together. In fact, a whole lot of Democratic Senators voted for Mr. Stewart, even though he was strongly opposed by groups that are normally aligned with Democratic interests, especially those who support a clean environment in this country. Then there was, of course, the nomination of Justice Ronnie White. He also was supported by every Democratic Senator. And every single Republican, including those who had voted for Ronnie White in committee, came down on the floor and voted against him. I do not recall anything like that ever happening on the Senate floor. His nomination was rejected by a party-line vote of Republics--it was quite unusual to vote down a district court nominee, especially one who had been voted out by the Judiciary Committee. Some of the same Republicans who voted for him before the committee voted against him on this floor. This superb African American jurist was humiliated and defeated. It took several more months of hard work to obtain votes on the nomination of Judge Paez and Marsha Berzon. Again, these anonymous Republican holds held them up until March of the following year 2000. Again, as I said, I will always oppose such anonymous holds. Even then, after obtaining a vote of Judge Paez's nomination to the circuit court involving overcoming several procedural hurdles and several votes before we were finally able, after more than 4 years of trying--4 years it sat here--this distinguished Hispanic jurist finally got a vote. Then 39 Republicans voted against the nomination, including a number of Republican Senators who were involved in yesterday's debate saying it would be a terrible and unique precedent if we don't immediately vote for a Hispanic who is nominated to the court of appeals, in this case, Mr. Estrada. They were perfectly willing to block floor votes for years before. I am not sure what the difference is. They both have supporters. I do recall the difference now. One was appointed by a Democratic President and one by a Republican President. Like I said, that seems to be all the difference in the world. In the debate, my Republican colleagues speak of the weight of the letter from the former Solicitors General and Acting Solicitor General. They say this is definitive and assert that the Senate has no right to ask these questions. Immediately, the independent 100 Members of the Senate say, My gosh. These guys who held these important staff positions at the Department of Justice are telling us we can't ask questions; that we should immediately run for cover, and say, of course, we will not ask questions. I don't quite read the Constitution that way. In fact, I frankly didn't get elected to the Senate and take my oath of office and decide at that point I will vote or take actions based upon what somebody who worked for the Attorney General tells me to do or not do as a Senator. I don't care which attorney general it might have been, Republican or Democrat. It is not in the cards. But I was concerned. I know of these former Solicitors General from both Republican and Democratic administrations. For many of them, I was impressed with their legal abilities. So I am struck with their letter's ignorance of the precedents. I do not know who wrote the letter, but one of the people who signed it was Robert Bork. But I doubt he wrote it because his own nomination provides some of the strongest precedent for the requests we are making. I do not fault them for seeking to maximize the secrecy of executive branch memoranda and deliberations, although I am surprised they are willing to do that at a time when we have the most secretive administration I have ever known out of the six administrations--I came here right after the Nixon administration, so I cannot speak for the Nixon administration. But this administration is certainly far more secretive than the other ones I have served with before: the Ford, the Carter, the Reagan, the first Bush, and the Clinton administrations. This letter states a policy preference and has been misinterpreted by some as a statement of law, or privileged, which it is not. I want to emphasize that. They state what they think the policy should be. They do not state what the law should be. Therein lies an enormous difference. They are not writing this based on their legal knowledge, saying this is the law. They are saying: This is what we think the policy should be. Well, I have always felt, on these kinds of issues, Senators should make that policy. Especially we should make the policy of what we are going to ask for in confirmation hearings. That was done at the time of our nation's first leader, President George Washington in cooperation with the Senate. I would note that in 1795, four years after the Constitution was adopted, the Senate defeated one of the judicial nominations of President Washington, that of John Rutledge and that vote was based on differences between many of the Senators and Justice Rutledge regarding ideas and policies. The Senate's consideration of judicial nominees and their views and approach to the law has been done by every Senate since. It is especially difficult to understand, hearing the sudden urge on the other side of the aisle that: Oh, my gosh, we have to keep everything in the executive branch confidential. Well, Congress passed the Presidential Records Act to require the opposite, that memoranda and writings of advisors to the President be made public. Additionally, I would not that some of the same Senators made demand after demand for internal documents of the Clinton administration over the last several years. They were asking for things that had never been asked for before, such as information related to on-going investigations. In fact, I think the Republican-led Senate spent tens of millions of dollars--tens of millions of dollars--of the taxpayers' money asking for document after document, many of which were probably were never read. I would be willing to bet some are still sitting in the envelopes they were transmitted in. And it was done almost every day: Let's think of something else to ask for. And it was sent. And the taxpayers were paying for it. Now, if you have something that is relevant to the core functions of the Senate, especially the confirmation function, then it is appropriate to ask for it. This is especially so for the only positions in our whole system of government that are for life--these judgeships are lifetime appointments. The Senate cannot amend these decisions, like a law, if we make a mistake. The administration's assertion that the documents produced to the committee during the Bork nomination did not reveal internal deliberations is way off the mark--way off the mark. When they say this did not reveal internal deliberations, that is way off the mark. It is quite clear the Department provided the Senate with memoranda written to Mr. Bork by lower level attorneys, those who were in the exact same capacity as Mr. Estrada, making recommendations about appeals in a variety of cases. For example, the Justice Department provided the Senate Judiciary Committee with memoranda related to the Justice Department's legal analysis of school integration cases, such as memoranda from Frank Easterbrook when he was an Assistant Solicitor General and Bork was Solicitor General. The Easterbrook legal memo and similar memos were shown as examples at Mr. Estrada's recent hearing as part of the large volume of legal memoranda provided by the Reagan Justice Department and examined by Senators and key staff. Senator Dodd, in an excellent speech, referred to some of these materials last night in debate. Not all of the information disclosed was previously placed in the Estrada hearing record, so I ask unanimous consent, Mr. President, to have printed in the Record a sample of the correspondence between Senator Biden, who was the then-chairman of the Judiciary Committee, and the Justice Department, which demonstrates the substantial cooperation and the types of disclosures the Justice Department made to accommodate the Senate in past administrations.

Mr. LEAHY. I put that material in the Record because it stands in stark contrast to the total lack of cooperation by the current occupants of the Justice Department. The administration, quite inappropriately, I believe, refuses the request of a coequal branch of Government. To quote a friend of mine, one who went to the same law school I did, at about the same time: We are not potted plants up here. The Senate has demonstrated its role in the confirmation of judges from the beginning of this country's history. After all, the Senate rejected some of President George Washington's and President Madison's judicial nominees. But let's go ahead with what has happened here. It makes me wonder if there is some kind of huge disconnect at the administration, or whether they are getting all their information based on some of the things that were wrongly stated on the Senate floor. What happened first is, the administration claimed: We cannot send up this material, these memos of Mr. Estrada because we never provided internal legal memos in the past. Then, of course, we gave them evidence: Well, yes, previous administrations had. Then the administration says: Whoops, well, those were different. They are distinguishable. So then we show them evidence: No, it is exactly the same kind of memoranda. And they say: Prove that you received memos that contained confidential information written by attorneys. And they say, we are still not going to accommodate you. We are still not going to come forth. They, in essence, are saying we are still going to stonewall you and we will continue to deny that any precedent exists. I am reminded of the famous story of President Lincoln's cross- examination in a case when he was a young lawyer. As the story goes, Lincoln was cross-examining a witness about how a man, who was far away from the scene of a fight, could have seen what happened. And it went something like this. Lincoln said: Isn't it true that you were across the road from where the incident took place? The answer was: Yes. Then Lincoln said: Isn't it true that you are near-sighted? The witness answered: Yes. And then Lincoln said: Isn't it true that your view of the fight was blocked by trees? The witness said: Yes. So Lincoln said: Then, how can you sit there and testify under oath that the defendant bit Mr. Smith? The witness answered: Because I saw the defendant spit Mr. Smith's ear out of his mouth. In our case, subsequent to Mr. Estrada's hearing, we learned that most of the Bork appeal memos disclosed to the Senate were returned to the Department the year after the nomination. The proof is in a letter from Acting Assistant Attorney General Thomas Boyd to Chairman Biden in May 1988, which notes that: [M]any of the documents provided to the Committee, ``reflect or disclose purely internal deliberations within the Executive Branch, the work product of attorneys in connection with government litigation or confidential legal advice received from or provided to client agencies within the Executive Branch. We provided these privileged documents to the Committee in order to respond fully to the Committee's request and to expedite the confirmation process.'' Sound familiar? Well, the requests should be familiar. It is exactly what we requested last year. The difference is, during President Reagan's administration, they responded. During this administration, they say: There is no precedent for it. So, frankly, this is the ``ear being spit out.'' The fact is, this letter ``spits out'' that the overly partisan current occupants of the Justice Department have sought to deny the Justice Department previously provided such documents. Mr. President, those denials are false. Surely, a copy of this letter is also in the Justice Department's files. If we had been able to get this letter earlier, even by the time of Mr. Estrada's hearing, we would have put it in the Record. It is obvious why the Justice Department probably did not want us to have it. Because it conclusively demonstrates the precedent that documents like the ones written by Mr. Estrada were provided to the Senate Judiciary Committee in the past. The Boyd letter conclusively demonstrates the precedent that documents like the ones written by Mr. Estrada were provided to the Senate Judiciary Committee in the past. It must now be admitted beyond dispute that, as the Justice Department acknowledged back then, ``the work product of attorneys in connection with government litigation or confidential legal advice'' was provided to the Senate in connection with past nominations. I hope that the administration and its Republican supporters will finally quit denying the precedent for the request and provide us with Mr. Estrada's memoranda. Letters from the Justice Department itself finally conclusively establish the precedent for our request. The longstanding policy of the Justice Department, until now, and the policy of prior administrations, including the Reagan and first Bush administrations, has been a practice of accommodation with the Senate in providing access to materials requested in connection with nominations. This administration would rather deny the truth and long- standing practices. At times it is as if this administration thinks it has a blank slate and a blank check notwithstanding tradition, history, precedent or the shared powers explicitly provided by our nation's Constitution. There is part of a pattern of hostility by this administration to requests for information by Congress acting pursuant to powers granted to it by the Constitution, regarding nominees and other important oversight matters. Yesterday, I joined with the distinguished Democratic Leader in a letter to the President setting forth background on the stonewalling of his administration that has occurred with respect to this nomination and urging him to take action to help resolve the impasse. I thank the Democratic Leader for taking this action and seeking accommodation between the two branches of our government. I have been seeking such accommodation for the last two years with respect to judicial nominations. I hope that we can now be more successful. I would also note that the few court cases cited by the administration about the general desirability of confidentiality for government documents are dicta and not precedential or binding on the Senate. One of the cases relied on by the administration is United States v. Nixon, 418 U.S. 683 (1974), in which the Supreme Court ordered President Nixon to disclose his Watergate-related tape recordings of Oval Office conversations with his closest personal and legal advisors. The Supreme Court also noted in the Nixon case that it is quite unlikely ``that advisors will be moved to temper the candor of their remarks by the infrequent occasions of disclosure.'' 418 U.S. at 712. Just as the Supreme Court observed in the Nixon case, it seems unlikely that Mr. Estrada was chilled from expressing his views in his memos following the disclosure of memos written by attorneys at the Department in the decade prior to his service there in connection with the Trott, Bork, Rehnquist, and Reynolds nominations. Ironically, memoranda by Mr. Bork assessing President Nixon's authority to refuse to disclose information was one of documents provided to the Senate in connection with the Bork nomination. Other cases cited by the Justice Department in its second letter are inapplicable to the Senate or pre-date the Nixon decision. For example, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975), is a case brought under the Freedom of Information Act (FOIA) involving a statutory-based claim of deliberative process privilege under FOIA, not a request from the Congress. I wish this administration were more forthcoming in connection with FOIA requests, but this is not a FOIA request, nor does FOIA limit Congress' authority to seek information from the Executive Branch or its agencies. Indeed, 5 U.S.C. 552(d) expressly provides that FOIA ``is not authority to withhold information from Congress.'' During the course of this debate Republican Senators have also spoken as if these materials are somehow protected by an attorney-client privilege. First, I note that even the administration has not made that claim. The administration's refusal to cooperation is not based on any claim of a legal privilege, just recalcitrance. I believe I explained at Mr. Estrada's hearing some of the reasons a claim of attorney-client privilege would be misplaced. Until this week, only the Washington Post had gotten it wrong in asserting that privilege applies. Unfortunately, Republican Senators are now taking up that chant. It is heartwarming to hear Republicans' devotion to concepts like the attorney-client privilege but it is that concept is inapplicable to the request for Mr. Estrada's writings. As a legal matter, the Seventh, Eighth, and District of Columbia Circuits have ruled that government lawyers are not entitled to claim the attorney-client privilege. Moreover, in this setting the ``client'' is the government of which the Congress is certainly a part. This administration's own Assistant Attorney General for Legal Policy Viet Dinh flatly rejected the notion of such a privilege five years ago when he told Legal Times that a government lawyer's ``employer is not a single person but the United States of America.'' He said both the ``United States of America'' and the ``government'' obviously include the United States Senate, especially when it is fulfilling constitutional responsibilities. As conservative law professor Ronald Rotunda has noted, ``government lawyers work for the government, and not the particular individual whose offices happen to be down the hall.'' He added that ``the government cannot plead attorney-client privilege against itself.'' This is from the Legal Times of August 3, 1998. The attorney-client privilege is designed to encourage candor by the client, not the attorney. For those who are not attorneys, I note that the attorney-client privilege is designed for litigation in courts between private parties. It is a judge-made doctrine based on policy considerations to foster an effective adversary legal system. I am a strong believer in our adversarial legal system and a strong supporter of the attorney-client privilege. It does not apply in these circumstances. Finally, there is ample precedent that the attorney-client privilege does not apply to requests by Congress. As Senator Fred Thompson, who chaired one of the many Republican investigations into the Clinton Administration, noted: ``In case after case, the courts have concluded that allowing it [the attorney-client privilege] to be used against Congress would be an impediment to Congress' obligation and duty to get to the truth and carry out its investigative and oversight responsibilities.'' My good friend from Utah, Senator Hatch, has echoed that analysis. A few years ago, he observed: ``The attorney-client privilege exists as only a narrow exception to broad rules of disclosure. And the privilege exists only as a statutory creation, or by operation of State common law. No statute or Senate or House rule applies the attorney-client privilege to Congress. In fact, both the Senate and the House have explicitly refused to formally include the privilege in their rules.'' The Congressional Research Service has found that ``No court has ever questioned the assertion of that prerogative'' and noted that the privilege ``is not of constitutional dimensions, [and] is certainly not binding on the Congress of the United States.'' I regret that so many of our Republican colleagues have chosen to seek comfort and concealment in a legal principle that has no application to this matter. I think that the confusion started with a Washington Post editorial that got this matter all wrong and reflects a lack of familiarity with the history of nominations and the Senate's long- standing view of the privilege. The Washington Post's editorials on these matters has been prone to err in a number of ways and they remain free to do so, but I am sorry so many were led astray on this and other matters. This Administration's policy argument for absolute secrecy of these memoranda is undermined by other long-standing practices related to nominees. The Senate routinely receives confidential information about lifetime and term-appointed nominees by way of the FBI's background investigation of a nominee, which details their adult lives and many private matters. Thus, the Senate is not required to show a particularized need for such private information which has long been germane to a nominee's fitness for judicial office. Moreover, the memos at issue do not involve national security. There are no state secrets in the documents Mr. Estrada has written requiring that they be sealed from congressional view forever. The memos do not relate to any on-going criminal investigation or to any matters that have not likely already been disposed of by the courts long ago. His writings are relevant to how he thinks, analyzes legal issues and makes judgement and, therefore, relevant to whether or not he should be confirmed to the second highest court in the country. Moreover, as Senator Schumer noted in his letter, anytime one of these memos is written, the writer must assume, and even hope, that his or her views will become the Department's official position. Thus, it is hard to believe the risk of disclosure on the remote chance that one might someday be selected for a judgeship would be chilling. Further, as noted long ago by the Supreme Court in McGrain v. Daugherty, 273 U.S. 135 (1927), Congress has the power to inquire into the administration of the Department of Justice--whether its functions are being properly discharged or neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties. Even Montesquieu, the architect of separation of powers, stated that ``The legislature should have the means of examining in what manner its laws have been executed by public officials.'' In this case, whether Mr. Estrada was using his position as an Assistant Solicitor General to advance his personal political opinions or to defend faithfully the laws passed by Congress has been called into question. In sum, there is ample historical precedent for the request made by the Senate Judiciary Committee. This Administration's refusal to cooperate obstructs Senators from fulfilling their role of giving meaningful advice regarding lifetime appointments and to give or withhold consent. The advice and consent responsibility that the Constitution entrusts to the Senate is demeaned if the Administration refuses to disclose information reasonably related to a nominee's fitness or integrity. Public confidence in the fairness of the judiciary is eroded when the Administration hides pertinent information about a nominee sought by the Senate Judiciary Committee in seeking to fulfill its role related to the appointment power that the Constitution confers jointly on the Senate and the President. The advice and consent clause of the Constitution is part of the Constitution's checks and balances in the lifetime appointment of individuals to a co-equal third branch of the federal government, unaccountable to the normal democratic process. The public's representatives in the Senate should have an opportunity to examine the writings of Mr. Estrada in advance of entrusting him with a judicial role for life. The influence of the courts over the lives of Americans demands that the Senate exercise its checking responsibility carefully and only after reviewing all relevant information. I think it has to be admitted beyond dispute that, as the Justice Department acknowledged back then, ``the work product of attorneys in connection with government litigation or confidential legal advice'' was provided to the Senate in connection with past nominations. I hope the administration and their supporters here in the Senate will finally quit denying the precedent for the request and provide us with Mr. Estrada's memoranda. Letters from the Justice Department itself finally and conclusively establish the precedent for our request. I ask unanimous consent that the letter, dated May 10, 1988, from Acting Assistant Attorney General Thomas Boyd be printed in the Record.

Mr. LEAHY. It is interesting to note that after I wrote the Attorney General and Mr. Estrada in May 2002, when I requested Mr. Estrada's writings, the administration didn't respond immediately. If they really believed in their own precedent, they would have come back and said: Look, we have a precedent against it. I think they realized there really was no such precedent, and they were going to try to make one up. They took weeks to respond. They could have responded in a day because the precedent was so clear. Or if they simply wanted to say, well, maybe all other Presidents did it that way, we are not going to do it that way, they could have done that in just a matter of days. But instead, it makes you wonder, did they go back and read those memoranda and say: Whoops, we don't want these to go before the Senate, they are too revealing? Whatever it is, Mr. Estrada himself says: As far as I am concerned, you can see them, and you can ask me questions about them. The irony is, in all likelihood we would not be here today, having this long debate on the Estrada nomination, if he had simply done that. If the administration simply said: Look, Miguel Estrada is willing to have his memoranda before the Senate Judiciary Committee and then to answer questions about what he meant, we would not be here; we would not be in the circumstance where he is asked, over the last 40 or 50 years: Is there anything that you disagreed with that the Supreme Court said? During that time, the Supreme Court has overruled itself. No, nothing. So we really have no idea what he thinks. They simply said: Look, we nominated somebody. We were not willing to allow the nominations to go forward when President Clinton nominated people here. We blocked them for year after year after year, but take ours on faith. Again, to the folks who made up a slogan I kind of liked, ``Trust, but verify,'' we will trust but verify. As I said, we would not even be here today, we would not be having this debate today, if this had been done. The longstanding policy of the Justice Department until now, the policy of prior administrations, including Reagan and the first Bush administration, has been a practice of accommodation with the Senate in providing access to materials requested in connection with nominations. But this administration wants to deny the truth and longstanding practices. You would think they believe they have a blank slate and a blank check notwithstanding tradition, history, and precedent or the shared powers explicitly provided by our Nation's Constitution. This goes beyond hubris. This goes to a sense of entitlement. It is a ``l'etat, c'est moi'' attitude on the part of the administration. It is saying: If we say it, it happens. If we want it, it is OK. It is almost like the little kid on the playground who says: I want this one, I want this one, I want this one, and I don't care what the playground rules are. Well, this is a lot more than a playground. This is the U.S. Senate, a place I love and revere and a place steeped in constitutional history, steeped in constitutional prerogatives; but even more so, one where we are called upon day after day to protect the Constitution of the United States. I see a pattern of hostility by this administration to requests for information by Congress, even though Congress is actively pursuing the powers granted to it by the Constitution, regarding not only nominees but important oversight matters. Yesterday, I joined with the distinguished Democratic leader in a letter to the President. We set forth the background of the stonewalling of this administration that has occurred with respect to this nomination. We urged them to take action to help resolve the impasse. I thank the Democratic leader for taking this action seeking accommodation between the two branches of our Government. I have been seeking such accommodation for the last 2 years with respect to judicial nominations. I hope we can be more successful. I hope that now people will step back and say: Look, let's put this on a more even keel. Let's have real hearings, not assembly line type hearings. Let's carry out our constitutional responsibilities. Let's go forward. That is the way I thought it should be when I came to the Senate 29 years ago. That is the way I think it should be now. I think that is the way it could be. It is the way it was with both Republican and Democratic administrations. I was not here at the time of the Nixon administration. I came shortly thereafter. I don't know if this kind of stonewalling is precedent or not. In my experience, I would not know that. But I know it was not during the administrations of President Ford, President Carter, President Reagan, the first President Bush, or President Clinton. I ask unanimous consent that a copy of the letter Senator Daschle and I sent to the President on this matter, pointing out that the precedent for what we have asked for was shown in the nominations of Robert Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, and William Rehnquist, be printed in the Record.

Mr. LEAHY. Mr. President, I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am pleased to introduce the ``Medical Malpractice Insurance Antitrust Act of 2003'' along with Senators Kennedy, Durbin, Edwards, Rockefeller, Reid, Boxer, Feingold, and Corzine. In the deafening debate about medical malpractice, I believe this legislation is a clear and calm statement about fixing one significant part of the system that is broken--skyrocketing insurance premiums for medical malpractice. Our health care system is in crisis. We have heard that statement so often that it has begun to lose the force of its truth, but that truth is one we must confront and the crisis is one we must abate. Unfortunately, dramatically rising medical malpractice insurance rates are forcing some doctors to abandon their practices or to cross State lines to find more affordable situations. Patients who need care in high-risk specialties--like obstetrics--and patients in areas already under-served by health care providers--like many rural communities--are too often left without adequate care. We are the richest and most powerful Nation on earth. We should be able to ensure access to quality health care to all our citizens and to assure the medical profession that its members will not be driven from their calling by the manipulations of the malpractice insurance industry. The debate about the causes of this latest insurance crisis and the possible cures grows shrill. I hope today's hearing will be a calmer and more constructive discussion. My principal concerns are straightforward: That we ensure that our Nation's physicians are able to provide the high quality of medical care that our citizens deserve and for which the United States is world-renowned, and that in those instances where a doctor does harm a patient, that patient should be able to seek appropriate redress through our court system. To be sure, different States have different experiences with medical malpractice insurance, and insurance remains a largely State-regulated industry. Each State should endeavor to develop its own solution to rising medical malpractice insurance rates because each State has its own unique problems. Some States--such as my own, Vermont--while experiencing problems, do not face as great a crisis as others. Vermont's legislature is at work to find the right answers for our State, and the same process is underway now in other States. To contrast, in States such as West Virginia, Pennsylvania, Florida, and New Jersey, doctors are walking out of work in protest over the exorbitant rates being extracted from them by their insurance carriers. Thoughtful solutions to the situation will require creative thinking, a genuine effort to rectify the problem, and bipartisan consensus to achieve real reform. Unfortunately, these are not the characteristics of the Administration's proposal. Ignoring the central truth of this crisis--that it is a problem in the insurance industry, not the tort system--the Administration has proposed a plan that would cap non- economic damages at $250,000 in medical malpractice cases. The notion that such a one-size-fits-all scheme is the answer runs counter to the factual experience of the States. Most importantly, the President's proposal does nothing to protect true victims of medical malpractice. A cap of $250,000 would arbitrarily limit compensation that the most seriously injured patients are able to receive. The medical malpractice reform debate too often ignores the men, women and children whose lives have been dramatically--and often permanently--altered by medical errors. The President's proposal would prevent such individuals--even if they have successfully made their case in a court of law--from receiving adequate compensation. We are fortunate in this Nation to have many highly qualified medical professional, and this is especially true in my own home State of Vermont. Unfortunately, good doctors sometimes make errors. It is also unfortunate that some not-so-good doctors manage to make their way into the health care system as well. While we must do all that we can to support the men and women who commit their professional lives to caring for others, we must also ensure that patients have access to adequate remedies should they receive inadequate care. High malpractice insurance premiums are not the result of malpractice lawsuit verdicts. They are the result of investment decisions by the insurance companies and of business models geared toward ever- increasing profits. But an insurer that has made a bad investment, or that has experienced the same disappointments from Wall Street that so many Americans have, should not be able to recoup its losses from the doctors it insures. The insurance company should have to bear the burdens of its own business model, just as the other businesses in the economy do. But another fact of the insurance industry's business model requires a legislative correction--its blanket exemption from federal antitrust laws. Insurers have for years--too many years--enjoyed a benefit that is novel in our marketplace. The McCarran-Ferguson Act permits insurance companies to operate without being subject to most of the Federal antitrust laws, and our Nation's physicians and their patients have been the worse off for it. Using their exemption, insurers can collude to set rates, resulting in higher premiums than true competition would achieve--and because of this exemption, enforcement officials cannot investigate any such collusion. If Congress is serious about controlling rising premiums, we must objectively limit this broad exemption in the McCarran-Ferguson Act. That is why today I introduce the ``Medical Malpractice Insurance Antitrust Act of 2003.'' I want to thank Senators Kennedy, Durbin, Edwards, Rockfeller, Reid, Boxer, Feingold, and Corzine for cosponsoring this essential legislation. Our bill modified the McCarran-Ferguson Act with respect to medical malpractice insurance, and only for the most pernicious antitrust offenses: price fixing, bid rigging, and market allocations. Only those anticompetitive practices that most certainly will affect premiums are addressed. I am hard pressed to imagine that anyone could object to a prohibition on insurance carriers' fixing prices or dividing territories. After all, the rest of our Nation's industries manage either to abide by these laws or pay the consequences. Many State insurance commissioners police the industry well within the power they are accorded in their own laws, and some States have antitrust laws of their own that could cover some anticompetitive activities in the insurance industry. Our legislation is a scalpel, not a saw. It would not affect regulation of insurance by State insurance commissioners and other State regulators. But there is no reason to continue a system in which the Federal enforcers are precluded from prosecuting the most harmful antitrust violations just because they are committed by insurance companies. Our legislation is a carefully tailored solution to one critical aspect of the problem of excessive medical malpractice insurance rates. I hope that quick action by the Judiciary Committee and then by the full Senate, will ensure that this important step on the road to genuine reform is taken before too much more damage is done to the physicians of this country and to the patients they care for. Only professional baseball has enjoyed an antitrust exemption comparable to that created for the insurance industry by the McCarran- Ferguson Act. Senator Hatch and I have joined forces several times in recent years to scale back that exemption for baseball, and in the Curt Flood Act of 1998 we successfully eliminated the exemption as it applied to employment relations. I hope we can work together again to create more competition in the insurance industry, just as we did with baseball. If Congress is serious about controlling rising medical malpractice insurance premiums, then we must limit the broad exemption to Federal antitrust law and promote real competition in the insurance industry.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am pleased to introduce the ``Medical Malpractice Insurance Antitrust Act of 2003'' along with Senators Kennedy, Durbin, Edwards, Rockefeller, Reid, Boxer, Feingold, and Corzine. In the deafening debate about medical malpractice, I believe this legislation is a clear and calm statement about fixing one significant part of the system that is broken--skyrocketing insurance premiums for medical malpractice. Our health care system is in crisis. We have heard that statement so often that it has begun to lose the force of its truth, but that truth is one we must confront and the crisis is one we must abate. Unfortunately, dramatically rising medical malpractice insurance rates are forcing some doctors to abandon their practices or to cross State lines to find more affordable situations. Patients who need care in high-risk specialties--like obstetrics--and patients in areas already under-served by health care providers--like many rural communities--are too often left without adequate care. We are the richest and most powerful Nation on earth. We should be able to ensure access to quality health care to all our citizens and to assure the medical profession that its members will not be driven from their calling by the manipulations of the malpractice insurance industry. The debate about the causes of this latest insurance crisis and the possible cures grows shrill. I hope today's hearing will be a calmer and more constructive discussion. My principal concerns are straightforward: That we ensure that our Nation's physicians are able to provide the high quality of medical care that our citizens deserve and for which the United States is world-renowned, and that in those instances where a doctor does harm a patient, that patient should be able to seek appropriate redress through our court system. To be sure, different States have different experiences with medical malpractice insurance, and insurance remains a largely State-regulated industry. Each State should endeavor to develop its own solution to rising medical malpractice insurance rates because each State has its own unique problems. Some States--such as my own, Vermont--while experiencing problems, do not face as great a crisis as others. Vermont's legislature is at work to find the right answers for our State, and the same process is underway now in other States. To contrast, in States such as West Virginia, Pennsylvania, Florida, and New Jersey, doctors are walking out of work in protest over the exorbitant rates being extracted from them by their insurance carriers. Thoughtful solutions to the situation will require creative thinking, a genuine effort to rectify the problem, and bipartisan consensus to achieve real reform. Unfortunately, these are not the characteristics of the Administration's proposal. Ignoring the central truth of this crisis--that it is a problem in the insurance industry, not the tort system--the Administration has proposed a plan that would cap non- economic damages at $250,000 in medical malpractice cases. The notion that such a one-size-fits-all scheme is the answer runs counter to the factual experience of the States. Most importantly, the President's proposal does nothing to protect true victims of medical malpractice. A cap of $250,000 would arbitrarily limit compensation that the most seriously injured patients are able to receive. The medical malpractice reform debate too often ignores the men, women and children whose lives have been dramatically--and often permanently--altered by medical errors. The President's proposal would prevent such individuals--even if they have successfully made their case in a court of law--from receiving adequate compensation. We are fortunate in this Nation to have many highly qualified medical professional, and this is especially true in my own home State of Vermont. Unfortunately, good doctors sometimes make errors. It is also unfortunate that some not-so-good doctors manage to make their way into the health care system as well. While we must do all that we can to support the men and women who commit their professional lives to caring for others, we must also ensure that patients have access to adequate remedies should they receive inadequate care. High malpractice insurance premiums are not the result of malpractice lawsuit verdicts. They are the result of investment decisions by the insurance companies and of business models geared toward ever- increasing profits. But an insurer that has made a bad investment, or that has experienced the same disappointments from Wall Street that so many Americans have, should not be able to recoup its losses from the doctors it insures. The insurance company should have to bear the burdens of its own business model, just as the other businesses in the economy do. But another fact of the insurance industry's business model requires a legislative correction--its blanket exemption from federal antitrust laws. Insurers have for years--too many years--enjoyed a benefit that is novel in our marketplace. The McCarran-Ferguson Act permits insurance companies to operate without being subject to most of the Federal antitrust laws, and our Nation's physicians and their patients have been the worse off for it. Using their exemption, insurers can collude to set rates, resulting in higher premiums than true competition would achieve--and because of this exemption, enforcement officials cannot investigate any such collusion. If Congress is serious about controlling rising premiums, we must objectively limit this broad exemption in the McCarran-Ferguson Act. That is why today I introduce the ``Medical Malpractice Insurance Antitrust Act of 2003.'' I want to thank Senators Kennedy, Durbin, Edwards, Rockfeller, Reid, Boxer, Feingold, and Corzine for cosponsoring this essential legislation. Our bill modified the McCarran-Ferguson Act with respect to medical malpractice insurance, and only for the most pernicious antitrust offenses: price fixing, bid rigging, and market allocations. Only those anticompetitive practices that most certainly will affect premiums are addressed. I am hard pressed to imagine that anyone could object to a prohibition on insurance carriers' fixing prices or dividing territories. After all, the rest of our Nation's industries manage either to abide by these laws or pay the consequences. Many State insurance commissioners police the industry well within the power they are accorded in their own laws, and some States have antitrust laws of their own that could cover some anticompetitive activities in the insurance industry. Our legislation is a scalpel, not a saw. It would not affect regulation of insurance by State insurance commissioners and other State regulators. But there is no reason to continue a system in which the Federal enforcers are precluded from prosecuting the most harmful antitrust violations just because they are committed by insurance companies. Our legislation is a carefully tailored solution to one critical aspect of the problem of excessive medical malpractice insurance rates. I hope that quick action by the Judiciary Committee and then by the full Senate, will ensure that this important step on the road to genuine reform is taken before too much more damage is done to the physicians of this country and to the patients they care for. Only professional baseball has enjoyed an antitrust exemption comparable to that created for the insurance industry by the McCarran- Ferguson Act. Senator Hatch and I have joined forces several times in recent years to scale back that exemption for baseball, and in the Curt Flood Act of 1998 we successfully eliminated the exemption as it applied to employment relations. I hope we can work together again to create more competition in the insurance industry, just as we did with baseball. If Congress is serious about controlling rising medical malpractice insurance premiums, then we must limit the broad exemption to Federal antitrust law and promote real competition in the insurance industry.

Mr. LEAHY

Mr. LEAHY. The Senator from Iowa is here, and the Senator from California is not here. Why doesn't the Senator from Iowa go forward and then yield to the Senator from California after she arrives? Will the Senator from Iowa have any objection to that?

Mr. LEAHY. Mr. President, I have listened with interest as my friend from Utah has made arguments against the Democrats using the old thing of the straw man debate. I have heard a lot of arguments the Senator from Utah says we make against Mr. Estrada, but I have not heard them from us. I did hear some interesting things. He has expressed his support for Judge Richard Paez. After blocking it for several years, the Senator from Utah did vote for him. I commend him for that. It is interesting, however, that he does not speak of the strong opposition to Judge Paez by the Republicans. A very large number of their votes were against him, and the fact that he was blocked by the Republicans year after year after year, while the nominee was here, that, the Senator from Utah suggests, is legitimate; whereas there seems to be a strong suggestion that if Democrats were to talk only a few days about Mr. Estrada, and some may even vote against him, that is not legitimate. I also note that it is easy to accept the arguments if you don't put all the facts forth. For example, the charge of the distinguished Senator from Utah--take one judge, Sonia Sotomayor of the Second Circuit. He puts her down as a Clinton circuit judge with no prior judicial experience. In fact, she did have prior judicial experience. She had been appointed originally by the first President Bush as a Federal court judge. In an example, when time and time and time again President Clinton nominated people for the court of appeals and other judicial nominees who had been appointed by Republican Presidents--something we have never seen in this administration and probably won't--but I know of at least three members of the Second Circuit Court of Appeals who were appointed by Republican Presidents versus district court judges, two by President Bush, one by President Reagan. All were then elevated to the court of appeals by President Clinton. Judge Sotomayor, of course, was held up by Republicans for a considerable period of time, even though she had originally been appointed to be a Federal judge by President Bush, contrary to what the chart of my friends, the Republicans, says. It is in absolute contradiction to what they said. She was blocked for a very long time by Republicans, and when she finally was able to get a vote, 29 voted against her. Let's be honest about what happened. Judge Sotomayor, a superb judge, was appointed first by a Republican to the district court bench, not, as my friends say, someone with no experience, and President Clinton nominated her to the Second Circuit Court of Appeals. She was blocked initially by the Republicans, and they finally allowed it through, but 29 voted against her. With Judge Paez, 39 voted against him. In fact--this is an interesting fact on Judge Paez. I wonder if everybody is aware of the fact that initially Republicans filibustered a motion to proceed to his appointment to the Circuit Court of Appeals. I heard mention somewhere that this never happened, that there were not any kind of delaying tactics on district court or Circuit Court of Appeals nominees, but on a motion to proceed, something Democrats did not block in any way with Judge Estrada, Republicans did. Fifty-three of them voted against that motion. I am surprised the Senator from Utah does not remember that fact because he is one of the 53 who voted against proceeding to bring up Judge Paez. I say this just to make sure we have accuracy in our debate. Debate on this nomination began last week on Wednesday, within seconds of the Senate adopting S. Res. 45, to honor the Space Shuttle Columbia astronauts, and after we observed a moment of silence. Many of us were not on the floor Thursday because we were attending a memorial for the space shuttle astronauts at the National Cathedral. I thank those who did participate in the debate last week. I commend to the Senate and to the American people the remarks of Senator Reid, Senator Kennedy, and Senator Schumer, each of whom added important dimensions and perspectives to this debate. I also wish to take a personal moment to commend the senior Senator from Nevada, Harry Reid. While he is not a member of the Judiciary Committee, he spoke so eloquently on this subject and was able to carry on the debate while others of us, as I said, had to be at the very sorrowful memorial service for our astronauts. I had hoped that at some point in the last 2 years or so we would have seen an effort on the part of the President and others to seek to unite rather than divide. Instead, we see a continuation of dividing the American people, as deeply as we have seen the 19 members of the Judiciary Committee divided. Many of us would like to know the record, would like to have a strong confidence in the type of judge Mr. Estrada will be, and be able to vote in favor of this nomination. Since I have been in the Senate, I have voted on hundreds of nominees--Republican nominees--to the Federal judiciary. I suspect I have voted for more Republican nominees to the Federal judiciary than most of my friends on the other side of the aisle have voted for Democratic nominees. I do not need any lectures on how we should be bipartisan. In fact, when I was chairman, we were able to get 100 nominations through the committee and to the floor, any one of which of President Bush's nominees could have been stopped simply by not bringing the person up for a vote. We got through 100. Whether I agreed with or was against the person, I felt that at least we had a record so we knew what this person thought. We are being asked, after all, to uphold our oath of office and vote to confirm somebody to a lifetime position. The reason we are asked to do that is the judiciary is supposed to be outside the political realm. The judiciary is supposed to be independent and is supposed to be for all Americans and is supposed to be lifetime positions, positions for which most of us who vote on them will not be in the Senate for the full terms of these judges. So we have to at least look at the nominees if we are going to answer to the American people. There are 275 million Americans. They expect an independent Federal judiciary. They know this country has a reputation of having the most independent Federal judiciary, and there are only 100 of us, however, who can represent those 275 million Americans and use our imprimatur and our vote to confirm. We put forth an imprimatur for the whole country that this is somebody who will maintain the independence of the judiciary and will not be somebody who comes to the Federal bench with an ideological agenda, and we say that because we have looked at the people. That is not the record before the Judiciary Committee, and it is not the record before the Senate on Miguel Estrada. I remain concerned he is going to be an activist on the court, especially when one looks at the very determined efforts, not only of the nominee but of the administration, to keep information from the Senate. It is typical of so many of these nominees. The White House has made absolutely no effort--absolutely no effort--to try to work out any kind of a bipartisan understanding on these judges. In fact, it has done just the opposite. They have stonewalled any request for information. Frankly, I am sorry my friends on the other side of the aisle are willing to accept this with absolutely no information, even to having a vote in the committee with several members of the committee never even having sat in on what hearing there was on Miguel Estrada. It is a case of ``don't ask because we know you won't tell, so we will just go along with it.'' ``Don't ask, you're not going to tell, we'll just go along with it.'' There was an interesting editorial cartoon in Roll Call this morning showing, like a meatpacking business, Federal judges coming down this assembly line and the Republicans on the Senate Judiciary Committee stamping OK, OK, OK, similar to the way beef is stamped for the USDA. Unfortunately, that does not help the American public. People can vote for or against Mr. Estrada as they want, but they should at least have some idea of on what they are voting, not this ``don't ask because we won't tell.'' We are being asked to consider a nominee with no judicial experience, with little relevant practical experience, who is opposed by many Hispanic leaders and organizations and many other Americans. While he counts Justice Scalia, former Judge Kenneth Starr, and Ted Olson among his friends and mentors, information about his decisionmaking or what his values are, what he brings to this court, are locked away from any Senate consideration. Last week I met with leaders of the Congressional Hispanic Caucus, the Mexican American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, Hispanic labor leaders, and they all told me they oppose this nomination. I was impressed by that because these are leaders who have come to me and other Senators over the years and have strongly backed Hispanic judicial nominees. We have 10 Hispanic judges on the courts of appeals now. Eight of them were appointed by President Clinton. I know they were all backed by these Hispanic leaders. In fact, there were a number of other Hispanic judges who were also nominated by President Clinton who were also backed by the organizations, and unfortunately, the Republicans would not allow them to even come to a vote in the committee, say nothing about coming to a vote on the floor of the Senate. Notwithstanding the number who were blocked by Republicans from ever even coming to a vote, President Clinton did appoint more Hispanics to the Federal bench than any President before him. I ask unanimous consent to print in the Record letters in opposition to Mr. Estrada from MALDEF and other Hispanic organizations.

Mr. LEAHY. Latino labor leaders made this point: They say Mr. Estrada is a stealth candidate whose views and qualifications have been hidden from the American people and from the Senate. He has refused to answer important questions about his views and his judicial philosophy. They say it would be simply irresponsible to put him on the bench, and that is true. To go back to some of the judges my good friend from Utah, the senior Senator from Utah, has talked about, Judge Richard Paez was a man strongly supported by his home State Senators. He was supported by every single Hispanic organization, and he was made to wait 1,500 days for a vote. I think a lesser person would have said: I am not going to stand, I am not going to do it. But with the very strong support he had from the Hispanic community, he did not want to let them down. He did not want to let down his family. I talked with him many times during that time and encouraged him to stay with it. Elections came and went and he held on. Finally, he was given a vote. President Clinton had to get reelected as President to have this happen. When we hear how great it was that they put him through finally, after 5 years of total humiliation, and that is 5 years during which he was endorsed by every single Hispanic organization that spoke, he was allowed to come to a vote, but almost 40 Republicans voted against him. I talked about Judge Sonia Sotomayor. This is somebody who had a unanimous well-qualified rating from the ABA, the highest rating possible. One would think this would have been a slam dunk. She was supported by every Hispanic organization. She had first been appointed to the Federal bench by the first President Bush. This should have been very easy, but every time we wanted to bring her up for a vote on the floor, there was an anonymous hold on the Republican side. Nobody wanted to step forward. I will step up and state my opposition to Miguel Estrada. I feel that is only fair. I do not believe in anonymous holds. But every time we tried to bring up Sonia Sotomayor, a person who is listed by my friend from Utah as being one of the marks of excellence, a Republican would put on an anonymous hold, not even come forward and say, look, I want a debate against this person. She finally came to a vote. Twenty-nine Republicans voted against this outstanding person. To his credit, my friend from Utah voted for her. I do appreciate that, and I complimented him at that time. Even though President Clinton appointed 80 percent of the Hispanic circuit judges that are now on the court, there would have been more. He appointed two from Texas to the Court of Appeals for the Fifth Circuit, Jorge Rangel and Enrique Moreno of Texas. What happened? No Republican voted against them, to their credit. But why? They never received a hearing or a vote. They were never allowed to come to a vote. So nobody had to vote against them. They were backed by every single Hispanic group that I know of. Before we say, oh, my gosh, what are we doing to this poor Hispanic American, here are two who were backed by every single Hispanic group, had high ratings, nominated to the Court of Appeals for the Fifth Circuit, and they were never allowed to have a vote. Christine Arguello of Colorado was nominated to the Tenth Circuit. As I recall, she was backed by every single Hispanic group there was. She was never allowed to have a vote. What I tried to do during the slightly over a year I was able to be chairman of the Judiciary Committee, I wanted to bring back some fairness to the confirmation process. I tried to address the vacancies we inherited as a result of a refusal to have votes on President Clinton's nominees. I brought a number of them forward. I also said I would not agree to this idea of anonymous holds, something that had blocked so many of these Hispanic judges. Late last week President Bush nominated one more Hispanic American to the Fifth Circuit. That is good; he has now nominated two, which is, of course, a fraction, two-thirds, of those who were blocked from votes during the last administration. It is not Senate Democrats who have created a confrontation over the Estrada nomination. It begins on the other end of Pennsylvania Avenue. I told this to the distinguished majority leader again this morning, that I have tried to work with the White House to see if there is some way we might move this process back to the kind of bipartisan process it was when I first came to the Senate, and that it was under both Republican and Democratic leadership for a long time but which it is not now. I have urged the White House to make an effort to unite rather than divide and then we might go somewhere, but there is a deafening silence from the other side of the Pennsylvania Avenue. I do not think they really care. I think they see court packing as being an answer to right-wing ideologues. I think they see that there should be a political move on the major Federal courts that, even though that would destroy their independence, even though that would diminish substantially the integrity of the Federal courts, they think it should be an ideological court packing. We see this coordinated effort to impose a narrow ideology on our Federal courts. The President campaigned saying that Justices Scalia and Thomas are his model nominees, and that is what he would use as a model for whomever he appoints. The Estrada nomination is evidence of that. Justice Scalia particularly was a nominee who is not only strident in his views but refused to share them with the Senate before his confirmation. Senators on both sides of the aisle stood up and said they were concerned with this stonewalling and they would not stand for it in the future. At least one side of the aisle has stuck with that. Now, last year there was a panel discussion at the Federalist Society luncheon in which Lawrence Silberman and others discussed the strategy of saying nothing in confirmation hearings. The report was that Judge Silberman offered the same advice he had given Antonin Scalia when Scalia was nominated to the Supreme Court in 1986: Keep your mouth shut. Mr. Estrada has followed that to the letter. I ask, why is the record for the Senate's consideration being kept so thin? The answer is, so the White House can have it both ways. They choose nominees based on narrow judicial ideology but insist the Senate proceed without considering it and, if possible, without knowing it. Secrecy and intimidation are the preferred methods of operation. Anyone who had any remaining doubt about the criteria used by the White House to select judicial nominees need only consider the admissions, including news reports over the last couple of weeks following the reports in late January of Robert Novak and White House Counsel Alberto Gonzales's role in crafting the administration's brief opposing the University of Michigan affirmative action case. There have been a series of reports of a ``loud whispering campaign'' in which right-wing conservatives touted Miguel Estrada as a safer, more reliable, conservative Hispanic for the President to nominate to the Supreme Court in lieu of Alberto Gonzales. Why? Pure and simple: Ideology; and a belief that you can nominate somebody who will vote not as an independent member of the Judiciary but as a Republican and--more than that--be part of the small, very conservative coterie of the Republican Party, and do it consistently and predictably. I went to law school. As a lawyer, I argued a lot of cases before Federal courts. You assume the judge will be independent and will not treat anyone one way or the other depending upon their political party, but that he or she will decide the case based on the facts. This apparently is no longer enough for this administration. They want a Republican judge who will vote as a Republican who will be consistent and predictable. In other words, if you are a Democrat coming before the Federal court or if you do not eschew a particular Republican ideology when you come before that court, you are not going to get independent treatment. That is wrong. USA Today noted that when the Bush administration did not go as far as GOP hardliners wanted in opposing the University of Michigan's affirmative action program, some blamed Gonzales. That has led to an unusually aggressive whispering campaign. Conservative activists have been successful in persuading President Bush to nominate hardline candidates, but lower courts made it clear to reporters that George W. Bush and others do not believe Gonzales is Supreme Court material. They go on to report conservatives also touting Miguel Estrada, native of Honduras and former Justice Department lawyer, who has been nominated by President Bush to serve on the U.S. appeals court in Washington, DC. The administration seeks to have it both ways. They want to take credit with the Federalist Society when they nominate ideological nominees, but they also want to pretend to the American public that ideology does not matter. I ask this: If ideology does not matter to the Republicans, why did they obstruct scores of President Clinton's nominees to the courts, including several to the DC Circuit? If ideology does not matter, why did Republicans vote in lockstep against Justice Ronnie White of Missouri to be confirmed to the district court? If ideology does not matter, why did Republicans filibuster the nominations of Justice Rosemary Barkett to the Fifth Circuit, Judge H. Lee Sarokin to the Third Circuit in 1994, Judge Richard Paez and Marsha Berzon to the Ninth Circuit in 2000? To say we would never do this obscures the record and blurs the rationale. Let me share with the Senate an account of Republican use of ideology in connection with judicial nominations. There was a column in the Wall Street Journal in the summer of 1998 explaining the anonymous Republican holds on the nomination of Judge Sonia Sotomayor to the Second Circuit Court of Appeals. I worked hard for 2 years on that nomination. It is my circuit. It is the circuit court I argued in front of when I was in private practice. I was astounded when Republicans held her up for months without a vote. I could not understand why such an outstanding nominee was being stalled by Republicans. After all, she initially was appointed to the Federal bench by a Republican President. Not only that, she had an outstanding record as a judge and, before that, an outstanding record in private practice and an outstanding record as a prosecutor. What was not to like about this Hispanic woman appointed initially by a Republican and now nominated by a Democrat? She had been confirmed by the Senate to the U.S. District Court for the Southern District of New York in 1992 after being nominated by the first President Bush. She started in a housing project in the Bronx. She then attended Princeton University and Yale Law School. She worked for more than 4 years at the New York District Attorney's Office as assistant district attorney. She was in private practice in New York. So then Mr. Gigot explained to all what was the problem behind the closed doors of the Republican Cloakroom. Republicans were fearful, if she were confirmed quickly, she could be in line to be nominated to the U.S. Supreme Court. Mr. Gigot wrote: If liberals do prevail, the president could turn to 43- year-old district court judge Sonia Sotomayor. She's every Republican's confirmation nightmare--a liberal Hispanic woman put on the district bench by George Bush. That was what the Republicans and the Wall Street Journal editorial writers said. Then the Wall Street Journal followed up, based on what they had been told by the Republican Cloakroom. They editorialized a few days later and issued these instructions. I recall, when we were issued instructions and the majority leader, George Mitchell, put together a plan that brought about a balanced budget, they said it would bring about economic ruin. We then had 8 years of the most spectacular rise in our economy and the highest employment we ever had. They issued instructions on June 8, 1998. We would like to think the Republicans may be having second thoughts and are deliberately delaying her confirmation to see whether Justice Stevens announces his retirement when the current Court term ends this month. The reason for the delay was confirmed by a subsequent report in the New York Times. That is just one of scores of nominations the Republicans have delayed or stalled or defeated because of ideology in recent years. I ask unanimous consent to have printed in the Record the May 29, 1998, column and the June 8, 1998, editorial in the Wall Street Journal.

Mr. LEAHY. When the Republicans now protest that the Senate can only look at where a person went to school, and the rating the newly compliant ABA provides, they are disregarding their own past practices. A young conservative activist spilled the beans quite explicitly recently on the ``Crossfire'' television program in which he said: . . . the second [he] gets in there he'll overrule everything you love-- Everything moderates have worked to enact over the years. That seems to be the badly kept secret, as to why the White House chose Mr. Estrada for this nomination--precisely because of his ideology. Keeping that secret is apparently what motivated the strategy that resulted in his extraordinary lack of responsiveness to substantive questions regarding his views and judicial philosophy. Nobody can look at opinions of the Supreme Court and believe that Justice Scalia and Justice Thomas do not have an agenda, the two stated by the President to be his model for nominees. But I am left with a fear that Mr. Estrada, likewise, comes to this nomination with a hidden agenda. Maybe it is the nature of the beast, but I have never seen so many crocodile tears in my life from the other side of the aisle as they ask: Why are we asking these questions? How can you possibly question this man? How can you possibly question this man? I am going to tell the Senate a secret as to why it is we asked for this. I know my friends on the other side may not want to let this out, so I will tell it just to those in this room where we learned to look into this. We heard it from a speech given to the Federalist Society in which the Senator speaking said: [T]he Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining who will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails . . . Determining which of the President's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of a nominee's jurisprudential views. I read that speech. In a sense of bipartisanship, I want you to know that I agree exactly with what Senator Hatch said in Utah when he gave that speech to the Utah branch of the Federalist Society. When Senator Hatch said that we have to prevent the confirmation of those who are likely to be judicial activists; the Senate must be more diligent and extensive in its questioning of nominees' jurisprudential views, I think my friend from Utah had it absolutely right and, guess what, that is exactly what we are doing here. In fact, when a Democratic President was sending judicial nominees to the Senate, the man who would later become the principal Deputy White House Counsel for the President, the man who played a significant role in the selection of President Bush's judicial nominees, Tim Flanigan, said, the Judiciary Committee and the Senate must be extraordinarily diligent in examining the judicial philosophy of judicial nominees. This man, who went on to help the current President Bush pick judicial nominees, said: In evaluating judicial nominees, the Senate has often been stymied by its inability to obtain evidence of a nominee's judicial philosophy. In the absence of such evidence, the Senate has often confirmed a nominee on the theory they could find no fault with the nominee. I would reverse the presumption and place the burden squarely on the judicial nominee to prove that he or she has a well-thought-out judicial philosophy, one that recognizes the limited role of Federal judges. Such a burden is appropriately borne by one seeking life tenure to wield the awesome judicial power of the United States. I agree with that. What I do not agree with is that we say we must have a standard of impartiality on judges, that they cannot be activists, that they must answer their questions--we can say that is the standard if it is a Democrat referring them to the Judiciary Committee, but that all goes out the window when it is a Republican. I agree that we must ask what their judicial philosophy is and they must answer the questions. That is the standard that the Republicans set over and over again, both those who went on to serve in the White House and my friend from Utah when he was chairman of the Senate Judiciary Committee. It is a standard on which we should all agree. But what I do not agree on is when it is a Republican making the nomination, no standards are required--no standards are required. We can't ask about philosophy. We can't ask about temperament. We can't ask what they are going to do with this lifetime appointment. In this case specifically, Mr. Estrada refused to provide us the answers about the types of jurisprudential views that Chairman Hatch and Mr. Flanigan said they must--they must--answer. At least they said they must answer when it was a Democrat nominating them. But I guess if it is a Republican nominating them we get kind of a pass; that there is going to be jurisprudential purity. Extensive questioning of this nominee's jurisprudential views have been forestalled and short circuited. He does have a paper trail but it has been kept secret by the White House. There is a paper trail that says what his jurisprudential views are, but the White House has kept it secret. We want judges to be fair and impartial. That is what I believe most Americans want. An independent judiciary is a bulwark against us losing our rights and our freedoms. I say it again. The vast majority of people, if they go into Federal court, want to be treated fairly. They want to look at that judge and say, it doesn't make a difference whether I am Democratic or Republican, conservative, liberal, rich, poor, what my color is, or what my creed is, or anything else; I am now before the Federal courts, the most respected judicial system in the world, and I am going to be treated fairly. But, whether they know it or not, whether they think of it or not, they have that sense that it is going to be a fair treatment because historically the Senate has maintained that integrity and independence of the Federal judiciary. From the first part of our Nation's history when the Senate even turned down judges nominated by President George Washington, the most popular President in our history, the Senate has maintained the integrity and independence of the Federal judiciary. As I said before, I have voted on hundreds of judges. I voted for hundreds of judges of Republican Presidents--President Ford, President Reagan, former President Bush, and the current President Bush, just as I have for Democratic Presidents. I have also voted against judges, those nominated by Democratic Presidents as well as by Republican Presidents. I do this because I know it is a lifetime appointment and we want to make sure of what we do. Most I voted for confirmation. As I said before, we set an all-time record--certainly the record for the last 10 or 15 years--during the year and a half or so that I was chairman of the Senate Judiciary Committee, sending out 100 Federal judges, both circuit and district, including, I say to the Senator from Alabama and the Senator from Utah who is in the Chamber, judges from their States--not Democrats. They were Republicans. I think a lot of their philosophy is different than mine. I trusted their integrity, and they answered the questions. But here, the little record we have calls into question whether this person can be a neutral referee or an advocate and activist from the bench. That is really where we are. We have a duty to the American public to say when we give our imprimatur by voting to confirm somebody to a lifetime position on the Federal courts that we have made every effort possible to make sure we are going to maintain the integrity and the independence of the Federal judiciary; that we are not going to turn the Federal judiciary into a political arm. We elect Presidents. In electing them, we say they can be political. I said I wish Presidents would be uniters and not dividers. In this case, they have been a divider and not a uniter--but the nature of it is they are expected to be political. We elect men and women to the House of Representatives and to the Senate to carry a political agenda, but we put people on the Federal judiciary to be independent and nonpolitical. Here we are being told that we are going to fill out a political agenda. My friend from Alabama wishes to speak. I will speak further but give him a chance to speak. Mr. President, I ask unanimous consent that several editorials and letters opposing Mr. Estrada's nomination be printed in the Record.

Mr. LEAHY. Mr. President, I yield the floor.

Mr. LEAHY. Mr. President, if the Senator from Arizona has something else, of course, I will be here a lot longer, I believe. If it would accommodate him, I would be more than happy to do that. And then if we could go back to this side, I would appreciate it.

Mr. LEAHY. Mr. President, if the Senator will withhold for a moment, I ask unanimous consent to print in the Record a number of items.

Mr. LEAHY. Why don't I read them into the Record? I will read them and there will be no question. Will Senator Grassley yield time? It will take 15 minutes to read them.

Mr. LEAHY. I am sorry, Mr. President, I was following the procedure followed by the other side this morning of putting items in the Record without identifying them. Why don't I read them all so there will be no question, if the Senator from Iowa does not mind waiting 20, 30, 40 minutes for me to do that, or if there is no objection, I will renew my request that the Puerto Rican Legal Defense and Education Fund position statements regarding Mr. Estrada be printed in the Record.

Mr. LEAHY. Mr. President, very briefly, we were going back and forth. I agreed to let the Senator from Arizona go out of order. I see the Senator from Iowa waiting, and he will also be out of order. I know the Senator from California is coming to the Chamber. Will the Senator from Iowa give me some idea how much time he wants? I have no objection to him going out of order.

Mr. LEAHY

Mr. LEAHY. Mr. President, will the Senator from Tennessee yield for just a moment, the distinguished majority leader?

Mr. LEAHY. A couple of things should be mentioned. As the distinguished senior Senator from Nevada has noted, we have a committee of conference on the appropriations this evening, which is a very significant one because of the level of appropriations bills being rolled into one. A number of us who might speak on the floor are also on that committee. Senior members of the Appropriations Committee have to be at the meeting. Some have said and others have commented about games-playing here. I don't think the distinguished majority leader or the distinguished acting Democratic leader would want to do that. I would suggest just for my friend--looking around the floor--having been here longer than anybody else on the floor right now, in the majority four or five times, and four or five times in the minority with very distinguished majority leaders, Senator Mansfield, Senator Byrd, Senator Baker, Senator Lott, Senator Daschle, Senator Mitchell--

Mr. LEAHY. And Senator Dole, and also having served as minority leader back and forth--all of them realized that anyone can come down at any moment of inattention and, using the rules, gain a one-time advantage. With all the distinguished leaders, I never saw a single one of them do that, even when over and over again they had an opportunity to do it. Many times when I was chairman of the Agriculture Committee, when I was chairman of Judiciary Committee, when I was chairman of the Foreign Operations Committee, and when I was chairman of a number of others, we would have hotly contested issues and cases where the ranking Member, the only other person on the floor, had to leave the floor for a phone call or something like that. And, of course, I always protected their rights. That is something that has been done. It is the role of the majority leader, of course, to try to move legislation forward. It has always been my feeling, whether being in the majority or in the minority, that the majority leader should do that. I think we can. But I also think everybody should realize that last week was a rather extraordinary week with, first, the services in Houston, and then the services at the National Cathedral, and then the Republicans had a conference where they had to go on Friday. A lot was chopped into that week. I have already said the three judges which are on the Executive Calendar--those which were actually going to be put over by the Republicans initially in the executive markup--I said to the distinguished Senator from Utah, let us go ahead and vote them out so we can get them on the floor. But also the majority leader may not be aware of the fact--at least from some of his statements--that during 17 months we did get through 100 of President Bush's judges and got all of them confirmed on the floor. I know the distinguished Senator from Utah would like to come close to that record, a record that was not achieved when the Republicans were chairing that committee and when President Clinton was here. I know he would want to try for that now. Of course, I would be happy to go forward on those and vote those three out. There will be rollcall votes. I realize that last year sometimes we had 10 or 12 at a time by voice vote. I think that escaped the attention of the press, the White House, the Republican Senate campaign committee, and others. I yield the floor.