Nomination of Miguel Estrada for Ciruit Court Judge

Mr. GRASSLEY. I thank the Chair. Mr. President, I thank Senator Leahy for his consideration. Obviously, since I voted for this nomination out of committee and I argued last year that the nomination should have come up last year, I am strongly in support of President Bush's nominee, Miguel Estrada. I think he is a very qualified judicial nominee and will make an excellent member of the U.S. Court of Appeals for the DC Circuit.

Not only is he regarded as one of the Nation's top appellate lawyers, but the American Bar Association, which I think Democrats consider the gold standard of determination of a person's qualifications to be a judicial nominee, has given him a unanimous rating of, in their words, "well qualified." This happens to be the highest American Bar Association rating. It is a rating they would not give to just any lawyer who comes up the pike. According to the American Bar Association, quoting from their standard:

To merit a rating of well qualified, the nominee must be at the top of the legal profession in his or her legal community, have outstanding legal ability, breadth of experience, the highest reputation for integrity and either have demonstrated or exhibited the capacity for judicial temperament.

Just think of some of those words: "The highest reputation for integrity" and having "demonstrated or exhibited the capacity for judicial temperament." This was from the American Bar Association's rating of well qualified.
We ought to demand that more of these people be appointed to the bench rather than fighting their nomination. Mr. Estrada then certainly deserves the American Bar Association's most qualified rating.

As my colleagues know, I am not a lawyer. There is nothing wrong with going to law school, but I did not. I have been on the Judiciary Committee my entire time in the Senate. I know some of the qualifications that are needed to be a Federal judge and particularly a Federal judge on this DC Circuit that handles so many appeals from administrative agencies and is often considered, by legal experts, to be the second highest court of our land.

Mr. Estrada's academic credentials are stellar. He earned his juris doctorate from Harvard University, magna cum laude, where he was editor of the Harvard Law Review. Mr. Estrada did not just attend Harvard Law School; he graduated with honors. He also served as the editor of the Harvard Law Review.

To be selected as the editor of a law review is a feat that only the most exceptional of law students attain. Not only did he excel in law school, but he graduated from Columbia University with his bachelor's degree magna cum laude and was also a member of Phi Beta Kappa.

Mr. Estrada certainly has the intellect required to be a Federal Court of Appeals judge. His professional background also gives testament to his being qualified for a Federal Court of Appeals judgeship as opposed to just any judgeship.
After law school, Mr. Estrada served as a law clerk to the Second Circuit Court of Appeals, and to Justice Kennedy, on the United States Supreme Court. Subsequently, he served as an Assistant U.S. Attorney and Deputy Chief of the appellate section of the U.S. Attorney's Office of the Southern District of New York, and then as assistant to the Solicitor General of the United States of America, officed in Washington, DC.

Mr. Estrada has been in the private sector as well. He is a partner with the Washington, DC, office of the law firm of Gibson, Dunn & Crutcher. So for a very young lawyer, I think I can give my colleagues a person who can truly be labeled an American success story. In fact, instead of downgrading his ability to serve as a circuit court judge, we should all be proud of Mr. Estrada's many accomplishments.

We are hearing that the Democrats are considering a filibuster of this exceptionally qualified lawyer. In all my years on the Judiciary Committee—and that has been my entire tenure in the Senate—Republicans never once filibustered a Democratic President's nominee to the Federal bench. There are many I may have wanted to filibuster, but I did not do it—we did not do it—because it is not right.

This nominee, like all nominees, deserves an up-or-down vote. Anything less is absolutely unfair. I hope my colleagues on the other side of the aisle will strongly consider this proposed filibuster before they cross this Rubicon and establish new precedent for confirmation.

Mr. Estrada's opponents claim he has not answered questions or produced documentation, and so he should not be confirmed to the Federal bench. I can think of a number of Democratic nominees who did not sufficiently answer even my questions, but that did not lead me to filibuster. As far as I know, Mr. Estrada has answered all questions posed to him by the Judiciary Committee members, and that the Justice Department has directed certain in-house memos not be turned over because this is the policy of the Department and this documentation has never been produced to the Judiciary Committee. This is not just the policy of this administration, the Bush administration, a Republican administration. This has also been the policy under Democratic Presidents.

So once more, we see a coalescing of liberal activists circling the wagon around a very talented, very principled, highly qualified legal mind to defeat Mr. Estrada's nomination solely because these activists have determined that he may not comply with some sort of liberal ideological agenda. These liberal interests only want the Senate to confirm judicial nominees who will be sure to implement a left-wing agenda, and if there is any question they will not do their bidding, then those judges and those nominees better watch out.

As far as I can see, the concerns raised about Mr. Estrada are pure speculation and, most importantly, highly politically motivated. This is a disgrace. It is an outrage, but we must put a stop to these unfounded political attacks and get on with the business of confirming to the Federal bench good men and women who are committed to doing what judges should do, interpret law as opposed to those who make law from the bench, because it is our responsibility to make law as members of the legislative branch.

Additionally, we have concerns materializing out of thin air that Mr. Estrada may not have the right judicial temperament for the job. Of course, that goes contrary to the analysis made by the American Bar Association committee which gave him a well-qualified determination, and that well-qualified determination only goes to those people who have judicial temperament.

This determination against Mr. Estrada, by these activists, goes to the point that he is some right-wing ideologue who will impose his own views and cannot be trusted to follow the law written by Congress. In my opinion, these concerns and these allegations are fabrication and pure speculation. They have no basis in fact. To the contrary, numerous present and former co-workers, as well as individuals who know Mr. Estrada and his work very well, have written letters to the Judiciary Committee expressing strong support for Mr. Estrada. They go on to say he will take the law seriously, apply Supreme Court precedent faithfully, and not rule based upon personal views and political perspectives.

If a judge has the law in front of him, if a judge is willing to follow the interpretation of the Supreme Court, and if a judge leaves out his personal views and leaves out his own political perspectives, then what he has in front of him is only the language of the law and the precedent. That is what a judge is supposed to make his decision on. That is what he said he would do. More importantly, people who have known him over a long period of time are convinced he will so do.
Letters from Republicans and Democrats have highly praised Mr. Estrada's intellect, judgment, integrity, and ethics. Yet we still have some who are quick to lend credence to unfounded attacks which appear to have been generated primarily by Paul Bender, a former politically appointed supervisor in the Solicitor General's Office during the Clinton administration.
Clearly, Mr. Bender's allegations are politically motivated. Not only is Mr. Bender a liberal activist, his own out-of-the-mainstream views on matters such as pornography cast serious doubts on his ability to fairly judge Mr. Estrada's qualifications. Need I remind my colleagues of the Clinton administration where they had a flip-flop fiasco in the Knox case, where Mr. Bender had a heavy hand in formulating a very extremist position that directly ran counter to a child pornography statute and to clear congressional intent about that child pornography statute.

Need I remind my colleagues that Mr. Bender's position would have resulted in the freeing of a twice-convicted child pornographer who had demonstrated a tendency to lure underage girls into criminal relationships. Need I remind my colleagues of the resolution they themselves voted on in the House and Senate that soundly rejected Mr. Bender's position in the Knox brief? I highly doubt Mr. Bender's own judgment is unbiased enough to provide an accurate recommendation of Mr. Estrada's ability to be a judge on the DC Circuit, particularly when these statements contradict Mr. Bender's own contemporaneous, glowing evaluations of Mr. Estrada when Mr. Estrada was one of those he supervised at the Solicitor General's office. Mr. Estrada was given glowing evaluations by Mr. Bender.

I also point out that Mr. Bender appears to be the only one of Mr. Estrada's former colleagues at the Department of Justice that now questions Mr. Estrada's ability to be a good judge. In fact, as far as I know, everyone else who has worked with Mr. Estrada has praised his record to the high heavens and believes he is more than qualified for this judgeship. It is obvious that Mr. Estrada's record and his integrity have been unfairly and baselessly attacked by a political hatchet person.
To whom are we going to listen? To whom do we 100 Senators listen? The American Bar Association, which interviewed scores of people and gave Mr. Estrada a unanimous "well-qualified" rating. The colleagues who know and who have observed Mr. Estrada's work over the years? Or are we going to listen to an advocate for freeing child pornographers, a man who is so extreme that his outrageous legal views were universally condemned in that vote on child pornography in the House and Senate?

In addition, last week, in a Democratic caucus press conference held by the Senator minority leader, a representative of the Mexican American Legal Defense and Education Fund criticized the statement that I made in the Judiciary Committee's consideration of Mr. Estrada when I was speaking for his name to be voted out of committee. This is what I said: If we deny Miguel Estrada this position on the DC Circuit, it would be to shut the door on the American dream for Hispanic Americans everywhere.

I said that because I believe it. Mr. Estrada is an example and a role model for all Americans, but he is a particularly bright and shining light for the Hispanic and immigrant communities in the United States of America. I don't happen to be alone in that belief. The League of United Latin American Citizens agrees with me because in a letter to Senator Leahy, the League of United Latin American Citizens expressed its strong support for Mr. Estrada, saying: Few Hispanic attorneys have as strong educational credentials as Mr. Estrada, who graduated Phi Beta Kappa from Columbia College and magnum cum laude from Harvard, where he was editor of the Harvard Law Review.

Continuing: He also served as a law clerk to the Honorable Anthony M. Kennedy in the U.S. Supreme Court, making him only one of a handful of Hispanic attorneys to have had this opportunity. He is truly one of the rising stars in the Hispanic community and a role model for our youth. That is from the League of United Latin American Citizens.

The Latino Coalition, a national Latino organization, also agrees that Mr. Estrada should be approved. They expressed in a press release last April that "to deny Latinos, the Nation's largest minority, the opportunity to have one of our own serve on this court in the Nation's Capital is unforgivable." I agree.

We also have the National Association of Small Disadvantaged Businesses. In another letter to Senator Leahy, the president of the National Association of Small Disadvantaged Businesses said: Mr. Estrada's appointment as a first Hispanic member of the DC Circuit will be a benefit to us in further illustrating the wide range of talent in the minority community just waiting to be effectively and fully used.

Mr. Estrada was not nominated just because he is Hispanic. The President nominated him because he is one of the most qualified lawyers in the country to serve in this position, not one of the most qualified Hispanic lawyers. However, because he is Hispanic, his nomination sends the clear message that with hard work anyone can achieve success. It speaks all about opportunity, the offering of opportunity for all kinds of people in America. In this case, especially, to Hispanics. He absolutely is the kind of role model that Hispanic youth should look up to, and we ought to encourage that opportunity.
Unfortunately, some in the Hispanic community do not believe Mr. Estrada is Hispanic enough. I don't know where they are coming from—Hispanic enough? What does that mean? According to the National Review at last week's Democratic press conference, representatives of the Congressional Hispanic Caucus, an organization I referred to before with the acronym MALDEF, and then another organization, the Puerto Rican Legal Defense and Education Fund, criticized Mr. Estrada for not being authentically Hispanic. If you are Hispanic, who is going to say whether or not you are authentically Hispanic? He is Hispanic as a result of his birth and the background of generations before him. Is that somehow supposed to fit people into a class that you isolate yourself and you have to have certain aspects about you that are uncompromising, or is it OK in America, whether you are German, Italian, African American, Hispanic, don't you have a right to be an individual? Can't you just be Mary Smith and Joe Smith and Mr. Estrada and anybody else you want to be as an individual? What is there about being authentically Hispanic?

Mr. GRASSLEY. Also at that press conference, remarks were made that one had to have more than a Hispanic surname to be considered Hispanic. I find these remarks do not make any sense. What they are saying is, unless you think as they do, you are not really Hispanic. In other words, if you do not think as they do, you cannot possibly be Hispanic. What an outrageous idea in 21st century America. The tag line that Mr. Estrada "isn't Hispanic enough" is code words for "he isn't liberal enough." Yet at this Democratic press conference, participants describe the underrepresentation of Hispanics in the legislative and executive branches of the Federal Government.

The President has nominated one of the most qualified attorneys in the country to be a judge on the second highest court of the land, and this person, of outstanding capabilities, with degrees from Columbia and Harvard, happens to be a Hispanic. Not only is he Hispanic, but he is an immigrant to this country who at the age of 17 came here from Honduras speaking little English. He learned the language, worked hard, rose to the top of his legal profession. One would think these groups would be happy with this nomination. But no, they stand in firm opposition to Mr. Estrada. You see, these groups believe a person is only Hispanic when he or she believes what these groups believe.

That is intellectual prejudice. I urge my colleagues to resist the rhetoric of ideological prejudice and to overwhelmingly support the confirmation of Miguel Estrada to the U.S. Court for the DC Circuit.

I yield the floor.