Nomination of Miguel Estrada for United States Circuit Court

Mr. DeWINE. Mr. President, I rise today in support of Miguel Estrada's nomination. I wish to talk about just one aspect of this nomination, one aspect about this debate. I am very concerned about an argument some have been making regarding their ability to assess this nominee's nomination to the DC Circuit Court of Appeals. Some are arguing that they cannot judge Miguel Estrada's qualifications because they have not seen some memos that he wrote when he worked for the Department of Justice from 1990 to 1997. Some argue they cannot vote in favor of his nomination because they have not seen these memos.

I am here this afternoon because I believe that this line of thinking is really not a prudent way to view the debate on this nomination. This is why. First, Mr. Estrada has nothing to do with whether these memos are released. Under the rules of privilege, it is not the attorney who produces the work who decides whether or not to disclose it. Instead, it is the client for whom the work was produced who has this right. To be blunt, this is not Mr. Estrada's fight. In fact, Mr. Estrada has testified that were it up to him personally, he would be willing to turn over the memos. In fact, let me quote from a transcript of his nomination hearing:

You are right that I have not opposed the release of those records. I have been a lawyer in practice for many years now, and I would like the world to know that I am exceptionally proud of every piece of legal work I have done in my life. If it were up to me as a private citizen, I would be more than proud to have you look at everything that I have done for the Government or for a private person.

I think it is clear that Mr. Estrada believes he has nothing to hide in those memos and would be willing to turn them over. However, as Mr. Estrada understands, it is not up to him to decide whether or not those memos are released. Instead, it is up to his client—in this case, the Justice Department. It is their decision. So it is clear that Mr. Estrada is not responsible for this dispute. It would be very unfair, I maintain, to hold up Mr. Estrada's nomination because these memos have not been released.

Perhaps more importantly, in terms of the underlying merits of the dispute, it is clear that the Justice Department is correct in refusing to turn over these memos. Precedent is clearly on their side. It is entirely appropriate for the Department to assert its privilege in order to protect work product that was used as part of the Department's internal deliberative process. Mr. Estrada discussed this issue at his nomination hearing, and he put it well when he said the following:

I do recognize that there are certain interests that have been asserted in this case that go beyond my own personal interest, and those are the institutional interests of the Justice Department.

Mr. Estrada was pressed to ask the Attorney General to release the memos. He was asked: Won't you go to the Attorney General and ask them to release the memos? This is what he said:

I have been a practicing lawyer for all these years, and one of the things I have come to learn is that a practicing lawyer .    .    . ought not put his own interests ahead of the stated interests of his client. .    .    .

The argument has been made that since he is no longer the Assistant Solicitor General, and because he no longer works at the Department of Justice, he doesn't have to protect their internal deliberations. But that argument really, of course, misses the point entirely. What is important is that these privileges do not exist to protect the lawyer. Rather, these privileges exist to protect the client. Accordingly, these privileges simply do not disappear when the lawyer no longer works for his client.

A lawyer's obligation to protect his client's privileges carries on indefinitely, whether that client is a private person, the Attorney General, or a U.S. Senator. In the case of a private person who hires a lawyer, the attorney-client privilege exists to encourage full and frank communication between clients and their attorneys. A client can confidently disclose all relevant information to his attorney so that the attorney can provide informed advice to the client.

If the client thought that the attorney would reveal the client's highly personal information, full disclosure would be significantly chilled. Similarly, it is in the client's interest that a lawyer's advice to him or her remains confidential. Any number of a client's decisions could be undermined if the attorney's advice influencing those decisions were revealed.
In a May 28, 2002, editorial supporting Mr. Estrada's nomination, the Washington Post recognized that:

Such a request for an attorney's work product would be unthinkable if the work had been done for a private client.
The Washington Post got it right. It seems completely reasonable to support private assertions of privilege. Some, however, will argue that this situation is different. Some will argue that this is a Government lawyer whose client is the people of the United States. Some will argue that all those documents and deliberations should be public because the public is the client. But that simply ignores reality, how the real world works and should work.

The Department of Justice makes difficult decisions about litigating some of the most complex and sensitive cases before our courts. The Department must decide which cases to pursue and what arguments to present in each case. It is in the interest of the public that these issues are fairly debated and vetted internally so that the Attorney General or the Solicitor General can make informed decisions.

Attorney General Ashcroft described the internal second-guessing that a career attorney could go through if the Department of Justice disclosed these internal deliberative memos. That attorney may question: Are these memos somehow going to be used against me later so that I should tone down my response? Should I adjust what I am saying because someday a Senate committee, or someone else, is going to want to look at it? Should I act in ways that are more consistent with my aspirations to be a judge someday instead of my responsibility to serve in a particular case?

Ultimately, we need an environment that allows for a complete discussion of all the arguments, both the pros and the cons. Attorneys have to be able to present all sides of a case. If an attorney who is engaged in a case discussion holds back, it hurts the case, it hurts the free and open exchange of ideas. If an attorney is afraid to talk about all the arguments and angles of a case because he or she is afraid of getting quoted at some future point, it hurts the case. It has a chilling effect on the discussion. It hurts the entire litigation process.

Let's bring this a little closer to home. Most Members of the Senate have attorneys on their staffs. This is especially true for those of us who serve on the Judiciary Committee. We often require counsel on complex legal and policy issues that come before the committee. I have several attorneys on my staff. Other Members do as well. We rely on our staffs, attorneys and nonattorneys, for candid and complete advice.

I insist they provide me with points of view and arguments from all sides of any given policy debate. Often, one of my attorneys will present one side of a debate and the other will take up the other side just so we get a give-and-take. This is a scenario that takes place many times a day every day in the Senate. I must have and other Members must have complete faith that we are getting the entire picture from our staffs and that we are receiving their unvarnished opinions. As it stands now, I am confident that I get such advice because my staff knows anything they communicate to me is completely internal and will not be disclosed.

Imagine the difference if their advice were subject to disclosure. Many staffers are in the early stages of their careers and may find themselves down the road serving the Government in many different capacities. Some may go on to appointed positions that might require Senate confirmation. How could I rely on their work if it were influenced by some fear that their advice would someday be revealed in the confirmation process? Think about it.

I know I am protected as a Member by the speech and debate clause and that my staff's advice to me will not be revealed because of that protection, but the principles are really the same. Our staff, Congress's staff, needs to be able to do its work without fear of future repercussions for arguments made in good faith, but the same is true of the staff of the Attorney General or the Solicitor General.

I wish to reiterate that this is not Mr. Estrada's fight.

Mr. DeWINE. This is not Mr. Estrada's fight. He should not be punished for a dispute that is really just about disclosure of documents between branches. It is that simple.

I support his nomination. I will be back in the Chamber later to talk about the merits, but I wanted to talk about this one particular aspect of the debate.

Mr. President, later today, in less than 2 hours, we will be voting on several district court nominations. One of them is John Adams from the State of Ohio. I personally know John Adams. John Adams is a very well respected judge from Summit County. He is a very decent human being. He is someone who is well respected in the community. He will bring great common sense to the Federal district court bench. I urge my colleagues to approve his nomination when we vote on it later today.

I thank the Chair and yield the floor.