Estrada Nomination

Mr. CORNYN. Mr. President, I have listened with great interest, and even great concern, to the debate that has taken place in this Chamber on the issue of Miguel Estrada's nomination to serve on the DC Circuit Court of Appeals, and I feel impelled to stand and explain the reasons why I think not only Miguel Estrada deserves confirmation by this body—indeed, he deserves a vote—but why I think the judicial confirmation process is broken and has fallen into a state beneath the dignity of this institution and this body.

Indeed, I think if you could characterize what has been going on with regard to this confirmation process, you could talk about "delay"—the fact that Miguel Estrada's name had been sent up for consideration by the Senate some 18 months ago, on May 9, 2001.

Second, I would choose the word "defeat" in talking about this nomination. It is clear the overarching objective of those who choose to oppose this nomination are those who wish to defeat President Bush on any and every front they can find, where they don't believe they will have to pay a political price.

You could also talk about "deny"—denying an opportunity for immigrants like Miguel Estrada, someone who is living the American dream, to serve in a position of public trust.

Finally, I will use the word "dispirit." Clearly, there is an attempt to dispirit those who would offer themselves for public service, to make it so burdensome and so distasteful that they will choose not to offer themselves for public service.
So I believe much of this debate encompasses these four concepts: Delay, defeat, deny, and dispirit.

Now, how have opponents to Miguel Estrada's confirmation chosen to approach their opposition? First, I believe they have used scare tactics. The Senator from Massachusetts said the other day:

WHEN THIS OR ANY OTHER ADMINISTRATION NOMINATES JUDGES WHO WOULD WEAKEN THE CORE VALUES OF OUR COUNTRY AND ROLL BACK THE BASIC RIGHTS THAT MAKE OUR COUNTRY A GENUINE DEMOCRACY, THE SENATE SHOULD REJECT THEM.

And then we heard from the Senator from Vermont:

WE SEE AN EMBOLDENED EXECUTIVE BRANCH WIELDING ITS RISING INFLUENCE OVER BOTH HOUSES OF CONGRESS AND EVER MORE DETERMINED TO PACK THE FEDERAL COURTS WITH ACTIVIST ALLIES, TO TURN THE INDEPENDENT JUDICIARY INTO A POLITICAL JUDICIARY.

Mr. President, if either one of those statements were true, if I believed those accusations were supported by the evidence, I would not support this nomination, nor would, I believe, any Senator, Republican or Democrat, support this nomination. But I believe more than anything else that sort of rhetoric, unsubstantiated in fact, is proof positive this confirmation process is broken. And I say enough is enough.

Opponents of Miguel Estrada's confirmation claim he has an inadequate record. They claim he has little relevant practical experience. They claim because he would not engage with them in a debating tactic, asking him whether there is any Supreme Court decision with which he disagreed, and finally, they claim that he has not clearly stated his judicial philosophy.

In my remarks over these next few minutes, I hope to address each one of those objections and show they are merely pretext for what is really going on here.

The American people know what is going on here, though, regardless of what Members may claim. They realize the judicial confirmation process in the Senate has become a game of political football, where the participants think they are going to score points against their opponent—Republicans against Democrats, Democrats against Republicans. But while the people who engage in this game of political football may believe they are scoring points, it is the American people who lose.

Again, I want to associate myself with the thoughtful remarks made the other day by the senior Senator from Pennsylvania who called for an end to the fingerpointing, the recriminations and the faultfinding. He called for the beginning of a new protocol, a new process that befits the dignity of this institution, one that would provide a timely, comprehensive, and efficient way to evaluate and vote on judicial nominees, regardless of which party is in power in the White House.

First of all, I want to address the objection that has been noted about Mr. Estrada's refusal to state a political position or ideological position on a whole range of issues that will, in all likelihood, come before him on the bench.

Everyone knows judges are not supposed to be politicians, running on the basis of a party platform, and, worse yet, everyone knows judges are not supposed to prejudge cases that may come before them. Why have a trial? Why have the adversaries in a court of law argue about what the facts are or what the application of the law to those facts should be if a judge is going to prejudge that case? That is not justice; that is the antithesis of justice and the dispassionate impartiality we expect from judges.

Every lawyer—and this body is chock full of lawyers—knows that cases are decided on the basis of the facts and the law, not—in a court of law, at least—on the basis of a political persuasion or an ideological position. Of course, Mr. Estrada is well within his rights to say, I am not going to prejudge a case because I do not know exactly how the facts may come before me; I do not know how the jury may decide the facts, and therefore I cannot tell you how the law may apply to that particular set of facts on a case-by-case basis.

Under our system of government, judges hold a very different job from that held by a member of the legislature or even the President, a member of the executive branch. Judges, if they are going to be true to their oath, if they are going to interpret the law, not make law, are bound by what this body says the law should be when we pass a bill or the President signs a bill into law, by the Constitution, and by precedents; that is, earlier decisions made by high court.

Any judge who presumes to take on the role of a lawmaker is, I submit, a lawbreaker. A judge should not be a politician campaigning for confirmation, and I applaud Mr. Estrada for refusing to submit himself to that sort of process and refusing to prejudge cases or to act like a politician campaigning for confirmation.

During the Judiciary Committee hearing and during the executive sessions in which I participated as a member of the executive committee, Mr. Estrada was asked: Do you disagree with any previous decision of the U.S. Supreme Court? I am afraid that demonstrates again what the judicial confirmation process has degenerated into. It should not be trivialized, and it should not be reduced to a law school classroom where narrow and provocative points of law are debated.

Does anyone really doubt that if any nominee disagreed with a Senator's view on policy issues, no matter how wrong under the law, we would see nothing but further degeneration of the confirmation process?

I believe that Mr. Estrada, being a good lawyer and highly qualified to serve on the DC Court of Appeals, is following the dictum of a Supreme Court Justice who said the Supreme Court is not final because it is always right; it is right because it is final. In other words, the way the Supreme Court decides a case puts it to rest unless, in the legislative area, Congress comes back and passes a statute that, in effect, overrules that decision by changing the law and making it perhaps clearer what its intent is, or even, in the rarest of circumstances on a constitutional point, that the people choose to amend the Constitution and say that does not represent what we, the people, want the Constitution to reflect or it does not reflect our values. And there is a process, of course, for that as well.

One of the most extraordinary arguments I have heard by opponents to Miguel Estrada's confirmation is that he does not have the experience to sit on the DC Court of Appeals.

I have been honored during my career to serve as a judge at a trial court level, at a State supreme court level, and I have been honored to serve as an attorney general of my State, the State of Texas, before I came to the Congress. I will tell you that Mr. Miguel Estrada has exactly the kind of experience that has prepared him better than virtually anyone could possibly be for service on this court.

Of course, we all know his record, a distinguished academic record. We know he served in the Solicitor General's Office during the Clinton administration and argued 15 cases before the U.S. Supreme Court. As attorney general of Texas, I had the honor of arguing twice before the U.S. Supreme Court myself, and I must tell you that is the Super Bowl for someone in my profession and someone in Miguel Estrada's profession. That is the peak of your career. That is the highlight of your legal experience, and to do it 15 times, it is as if he had Super Bowl rings on every finger of both hands, and to claim he is not qualified is preposterous.

Of course, you cannot have the experience of being a judge until you have actually been one. People have to start somewhere. Even the senior Senator from New York has stated that Miguel Estrada passes his self-styled test for excellence. He said: Excellence is legal excellence, the quality of the mind. We don't want political hacks on these important courts. No one disputes that Mr. Estrada passes this point with flying colors. He comes highly recommended in this regard. When the ABA, the American Bar Association, recommends him, that is all they are evaluating.

I believe it is a red herring to argue that Miguel Estrada has insufficient experience to serve on this important court.

What is really going on? I think a comment in the Congressional Record on February 5, 2003, by the ranking minority member of the Judiciary Committee, the Senator from Vermont, is very telling, and I want to read this twice so there is no missing what he said.

He said:

I HAVE FRIENDS WHO RANGE ACROSS THE POLITICAL SPECTRUM. BUT I THINK I ALSO WOULD BE WILLING TO STATE WHAT MY POLITICAL PHILOSOPHY IS, OR CERTAINLY WHAT MY JUDICIAL PHILOSOPHY IS, IF I AM GOING TO ASK FOR A LIFETIME APPOINTMENT TO THE BENCH, JUST AS I HAVE TO STATE WHAT MY POLITICAL PHILOSOPHY IS WHEN I ASK THE PEOPLE OF VERMONT TO ELECT OR REELECT ME.

So it is clear, what the Senator is saying is he expects a person nominated by the President, before this body for confirmation, to express a political philosophy, just like he or any other Member of this body would running for the Senate.

I believe that demonstrates exactly how wrong the concept is of what the advice and consent function of the Senate should be under our Constitution, and how wrong the concept is of what a judge should be under our Government of separated powers. I want to talk about that in a moment.

When I think about the scare tactics that have been employed over the last few weeks with regard to Miguel Estrada, it becomes crystal clear to me why our Government has a difficult time recruiting talented individuals to leave the private sector and offer themselves for public service. Why would anyone in Miguel Estrada's position, a successful lawyer, someone who, as I said, has been to the Super Bowl 15 times, subject himself to such a spectacle?

Mr. Estrada is very good at what he does. He has a successful law practice as a partner in a prestigious firm. In the 16 years he has practiced law, his reputation is unblemished. For the first time in his career, his professionalism, his temperament, his willingness to put his hand on the Bible and take an oath and abide by that in performing the job of a judge are all being called into question. Again, I ask: Why would he or anyone else like him subject himself to this broken process?

If he were here today, he would say, as he told me in my office, that accepting this nomination to serve on the DC Court of Appeals is not about personal accomplishment, personal achievement, but it is a sense of duty and obligation to our country, his adopted country.

This country took in his mother and his sister, and himself. At age 17, he came from Honduras to America, barely speaking English. Working together and at great sacrifice, his mother put Miguel through law school, with his help. He worked odd jobs. It is also worthwhile to note, they put his sister through medical school.

These immigrants, one a distinguished lawyer, another a distinguished doctor, by dint of hard work, access to a good education, have achieved what we all recognize as the American dream and what every immigrant hopes for. Indeed, we are a nation of immigrants. Through education and hard work, they have found prosperity, and this opportunity, this hope, is the best civil right this country can give to any immigrant.

Miguel Estrada sees this as an opportunity to contribute to a way of life that provided him a way out, an opportunity for great achievement and success, and an opportunity for public service. Only under our broken, destructive judicial confirmation process, as it has now become in this body, someone can be demonized, not just criticized but demonized, for such an honorable goal. It is a shame.

America has always been, and God willing will always be, a land of opportunity. Yes, despite our imperfections, despite our mistakes, millions have flocked to these shores seeking a better life for themselves, their children, and their grandchildren. America is, of course, a land of immigrants, where those who come look for freedom to speak as they wish, to associate with whom they choose, to worship according to the dictates of their conscience and, yes, to seek justice. Those who have come have spared nothing, sometimes even their own lives, seeking opportunities for those who come after. At different times during the course of this Nation's history, they have come from England, Italy, Ireland, Spain, Mexico, Canada, Asia. They have come by the thousands and tens of thousands. What has drawn them irresistibly to this country is their hope and their ambition, not just for themselves but for those who would come after them.

It is that diversity, that desire, that dedication, that is the bedrock of American strength and resilience, and which has made America a beacon of hope for the rest of the world.

To me, one of the most amazing things about Miguel Estrada's story is in many ways it is not unique. It is exemplary, but it is not unique. His learning to speak English at 17, his subsequent admission and outstanding accomplishment at the premier institutions of higher learning in this country, have all been remarkable, but the simple immigrant story that is his life has been repeated time and again over the course of this Nation's history. People have come to work in this country with little but their hopes and their dreams, and by dint of faith, hard work, determination, sacrifice, they achieve the American dream. Each time this happens, and it has happened time and again during the course of this Nation's history, America redeems a promise it makes to all who would come here: Liberty and justice for all.

Too often, we focus on what is wrong with our country. No doubt we should strive to correct our mistakes, strive to overcome our shortcomings whenever and however we can, but we would be a cynical people, knowing the costs of everything and the worth of nothing, if we did not also celebrate what is right in America. We should celebrate occasions like this when the hopes, dreams, and aspirations of an immigrant family from Honduras have become a reality, confirming once again America is indeed the last best hope of mankind, where all who come here and who are willing to work hard to sacrifice can live up to their God-given potential.

We have heard it said Mr. Estrada has not laid out his judicial philosophy. I was surprised to hear that in the Senate Judiciary Committee the other day, when the senior Senator from New York made that charge, and said all he has told us is he will follow the law, he has not told us what his judicial philosophy is. Well, I think Mr. Estrada has articulated the best judicial philosophy that we as Americans could possibly hope for, a judicial philosophy and a dedication to the law that the American people who appear before the bench require.

What he has said is he will not pursue his own agenda. He will not pursue a social or political agenda. He will not try to make the law according to his liking. He will give the legislatures' enactments and the acts of Congress deference and will seek to determine our intent as policymakers and as those in the political branch who run for office based on a platform saying what we are for and then are voted for by the people of our State to come here. By saying he would follow the law, he is saying he would not only honor legislative acts, he would follow judicial precedence. That is the decisions by the highest court in the land.

As legislators, as those in the Senate who have the awesome responsibility of advice and consent, we should want to hear that. We should embrace it. There is no role for advocacy of personal beliefs or political agendas on the part of a judge under our Constitution. Judges are bound to follow Supreme Court precedent, whether they agree with it or not as a personal matter. If there is such a thing as the rule of law as opposed to the rule of men, judges are bound to follow the acts of the legislature and judicial precedent, whether they agree with them or not. Mr. Estrada has committed to follow the law, whether he agrees with it or not. Personal views and ideology have no role whatsoever to play. I believe that under our Constitution—and I believe that is what is taught in our classrooms in civics every day across this Nation—this is the appropriate role for a judge and for our judicial branch. We don't want them making legislative policy. We do not want judges who are legislators in robes.

My colleagues across the aisle in this Chamber know, we all know, that is our job. We stand accountable to the American people and to the voters of our States for doing that job. That is what we have accepted by coming here and agreeing to represent our States.

A lot of the debate we are hearing today, this week—and who knows how long this will go on—is not just about Miguel Estrada but about what is the appropriate role for our three branches of Government. Heaven knows, this is not a brandnew debate. But I would think most of the country would have thought that matter already settled. Indeed it was. Alexander Hamilton wrote about it in the Federalist Papers, of course, as the President knows, when the people of New York were considering this new Constitution, whether to ratify it. He was explaining the various provisions of this new Constitution to the people at that ratifying convention in New York. It is addressed in Federalist No. 78, what is the role we expect of the judiciary and how does that relate or compare to the role we have for the legislature or for the executive branch—the President.

He said:

WHOEVER ATTENTIVELY CONSIDERS THE DIFFERENT DEPARTMENTS OF POWER MUST PERCEIVE, THAT, IN A GOVERNMENT IN WHICH THEY ARE SEPARATED FROM EACH OTHER, THE JUDICIARY, FROM THE NATURE OF ITS FUNCTIONS, WILL ALWAYS BE THE LEAST DANGEROUS [BRANCH] TO THE POLITICAL RIGHTS OF THE CONSTITUTION; BECAUSE IT WILL BE LEAST IN A CAPACITY TO ANNOY OR INJURE THEM. THE EXECUTIVE [ON THE OTHER HAND] NOT ONLY DISPENSES THE HONORS, BUT HOLDS THE SWORD OF THE COMMUNITY.

In other words, the executive's job is to execute the laws passed by the legislature.

THE LEGISLATURE NOT ONLY COMMANDS THE PURSE, BUT PRESCRIBES THE RULES BY WHICH THE DUTIES AND RIGHTS OF EVERY CITIZEN ARE TO BE REGULATED.

In other words, the legislature makes policy, makes the law.

He goes on to say:

THE JUDICIARY, ON THE CONTRARY, HAS NO INFLUENCE OVER THE SWORD OR THE PURSE; NO DIRECTION EITHER OF THE STRENGTH OR OF THE WEALTH OF THE SOCIETY; AND CAN TAKE NO ACTIVE RESOLUTION WHATEVER. IT MAY TRULY BE SAID TO HAVE NEITHER FORCE NOR WILL, BUT MERELY JUDGMENT; AND MUST ULTIMATELY DEPEND UPON THE AID OF THE EXECUTIVE ARM EVEN FOR THE EFFICACY OF ITS JUDGMENTS.

I would like to address one other comment that is made from time to time about the role of the Senate in performing its advice and consent functions. Some Senators I have heard say they perceive their role as seeking to achieve balance of the courts, by which I take them to mean they believe that a court, the District of Columbia Court of Appeals, must be evenly split with judges of different philosophies.

That concept is completely alien to our Constitution. Balance and independence, in our judicial branch, are not meant to be determined by Republicans and Democrats choosing their respective champions. The President has a right granted to him under the Constitution to appoint judges of his choosing, subject to the advice and consent of the Senate. That is one of the reasons we vote for a candidate to serve as President of the United States. All we should rightly do as Senators is determine whether or not a nominee has the qualifications and the temperament to be a judge. Included, of course as an element of that temperament, we should expect that nominees will pledge to a sound judicial philosophy, to uphold the law, by giving the legislature deference and by following judicial precedent. Miguel Estrada has pledged to do exactly that, and we should ask no more and no less of any nominee.

I said earlier I believe our judicial confirmation process is broken, that the kind of things we see going on in the process—delay, defeat, denial, and a dispiriting of those who would offer themselves for public service—has created a terrible situation. The process has become so politicized that we find ourselves in situations such as this, where Senators on the other side of the aisle are now talking filibuster, to deny this President the prerogative, granted to him under the Constitution, to appoint a highly qualified individual such as Miguel Estrada to serve on the District of Columbia Court of Appeals.

It is obvious to any reasonable person that the Senate needs a fresh start. We need a fresh start on judicial nominees and on the judicial confirmation process. Miguel Estrada, like other nominees, has waited for an inordinate amount of time—18 months so far. We owe it to the men and women who are nominated by the President to do our job on a timely basis, and to do it applying constitutional standards, not those that we make up or which we perhaps prefer, or those which serve the political interests of some constituency. The truth is, we owe it not only to the men and women who are nominated, we owe it to the American people to do our job, to do it on a timely basis, and to apply correct constitutional standards, because we know, and common sense will tell us, that the failure of this body to timely act on the President's nominees means that very real human beings with real live cases and controversies that they need to have resolved are simply being told there is no room for their case. Justice delayed is justice denied.

As someone new to this body, I hope a new system can be devised enabling us to consider, on a bipartisan basis, new rules, a new agreement, a new paradigm, a new protocol that will guide us in the manner in which we consider the President's nominees. That is not just for this President, but anyone elected by the people to serve in that important office, regardless of who is in power, whether it is a Republican or a Democrat.

The result of this fresh start should be timely consideration of a nominee's qualifications and an up-or-down vote by the Judiciary Committee—and certainly no one is suggesting that any Senator ought to do anything other than to cast their vote either for or against a nominee. But they ought to do so on a timely basis. We should not have the kind of delay which we have had in this case. But if a nominee is voted out of the Judiciary Committee, then, of course, there ought to be that timely vote by the entire Senate regardless of who is President. Let us not hold to the delays and obstructions of the past as methods for treating judicial nominees in the future.

In closing, I urge my colleagues to confirm Miguel Estrada. I believe we ought to have a vote today on his nomination. We have had many days of debate. We have had 18 months since the President first proposed his name. Mr. Estrada has been scrutinized and questioned. His background has been investigated by the FBI. I believe he deserves a vote either up or down today.

Of course, I will, for the reasons I have just stated, vote for his confirmation. I believe the Nation will benefit from his experience, and he will be given the opportunity to give back to his adopted country through this position of honorable public service.

I yield the floor.