Estrada Nomination (cont.)

Mr. CORNYN. Mr. President, as I listened to the distinguished Senator from Georgia recite the Farewell Address of George Washington dating back to 1796, I could not help but think how the Founding Fathers must regard the debate on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit that we have been having for 3 weeks. I rise this afternoon, at the beginning of that third week of Senate debate, with grave concerns about the judicial confirmation process and about how that process is being applied in this particular case.

I am saddened to say I believe the process has degenerated into one where double standards are being applied, and games of payback that are really beneath the dignity of this institution. I have actually heard with my own ears, as the junior Senator from New York has said, that Democrat obstructionism in this instance is justified by the manner in which confirmation proceedings have occurred in the past, using a phrase like "what is good for the goose is good for the gander."

That kind of language, that kind of attitude, that kind of conduct in this Chamber is deeply disconcerting to me, and I suspect to all the American people. As I have had the opportunity to say previously, many of us, myself included, were not in the Senate when these perceived slights took place in the past, but I believe what we need is a fresh start with regard to judicial nominations and the judicial confirmation process, one where Presidential nominees can be given a timely hearing and then voted up or down without unnecessary delay and gamesmanship. Only then can we discharge our responsibility and get on with the business the American people have sent us to do, putting the public interests and not special interests first.

In this instance, I am not just concerned about the unfair delays—in fact, Mr. Estrada was nominated by the President on May 9, 2001—I am also concerned about unfair standards, double standards. Those who oppose Mr. Estrada's confirmation will apparently stop at nothing to obstruct it. It must be a terrible dilemma indeed for those who oppose this nomination because for them to win, the American dream must lose.

Of course, the time to vote has come and gone. Yet we have only delay and obstruction. It does not affect only this one nomination. On every day the Senate has been in session since February 5, Members of this body have extensively and exhaustively debated this nomination. Precious Senate time, energy, and attention that could have been devoted to getting the Nation's business done has simply been delayed: Things such as getting the economy moving again, strengthening our national security, protecting our homeland, modernizing and strengthening Medicare.

This time has been squandered by endlessly debating an obviously and extremely qualified nominee. So many other challenges needing this body's attention have been hijacked by this delay and by those who will not even allow a vote on Mr. Estrada's nomination, a truly selfish and unprecedented act.

The debates on this issue have run into the late hours of the day and even into the wee hours of the night. It is time, indeed it is long past time, to bring this debate to a close.

We have returned after the President's Day recess, and I hope others will join with me as I join President Bush in calling for a vote on Mr. Estrada's nomination today.

Unfortunately, the Democratic leadership strategy is clear: Delay the nomination indefinitely in the belief that Mr. Estrada's countless supporters across this Nation and across the political spectrum will eventually grow tired and give up hope. These same leaders seek to defeat Mr. Estrada, even though he commands the support of a bipartisan majority of the Senate, and they want to deny the President his plan to place Mr. Estrada, a role model for countless immigrants and an inspiration to all Americans, on to one of the most prestigious Federal courts in all the land.

It is worth recounting who is Miguel Estrada. He is an individual of extraordinarily high academic achievement, having graduated magna cum laude from both Columbia and Harvard Law School, and having been an editor on the Harvard Law Review. He is an individual who has already served the public with great distinction, as a law clerk to one of President Jimmy Carter's most respected appointees on the Federal courts of appeals, as a law clerk to U.S. Supreme Court Justice Anthony Kennedy, as an Assistant U.S. Attorney, and as an Assistant to the Solicitor General during the first Bush and Clinton administrations. This is an individual who has argued 15 appeals to the U.S. Supreme Court, the legal equivalent of the Super Bowl, reserved for only the Nation's very top lawyers.

This is an individual who has been endorsed by numerous top Clinton administration lawyers and officials, including Vice President Gore's former chief of staff and a former chief counsel to the Senate Judiciary Committee, Ron Klain, the Clinton Justice Department Solicitor General, Seth Waxman, and several other high-ranking Clinton Administration officials. This is an individual who has been supported by numerous Hispanic organizations, including the League of United Latin American Citizens, the National Hispanic Bar Association, the U.S. Hispanic Chamber of Commerce, and the Latino Coalition, to name but a few.

Miguel Estrada is an individual who was not born in this country but who came here at age 17 from his native Honduras barely speaking English. This is an individual described by the oldest and largest Hispanic organization in the United States as "truly one of the rising stars in the Hispanic community and a role model for our youth." This is an individual who has been rated unanimously well qualified by the American Bar Association, which some of my Democratic colleagues have referred to as the "gold standard" in judicial confirmation proceedings. And yes, this is an individual who embodies the realization of the American dream for immigrants throughout our land. It is no wonder that today, the beginning of the third week of debate on this exceptional individual's nomination to the Federal bench, that a bipartisan majority of the Senate stand ready to confirm him right now without any further debate or discussion.

We need to do what the American people have sent us here to do. We need to vote. The Democratic leadership has tried to convince Members of this body to vote against confirmation. But because those leaders have failed to make the case for voting this nominee down, they are now left with one alternative, and that is obstructing any vote on this nominee.

There is simply no reasonable case for refusing confirmation of this individual to the U.S. Court of Appeals for the D.C. Circuit. Yet it seems that the Democratic leadership is obsessed with obstruction. Before the November election in 2002, they obstructed President Bush's proposal to create a Department of Homeland Security to better ensure the protection of the United States and the American people in the event of further terrorist attacks. They have obstructed President Bush's proposal to stimulate the economy by making the 2001 tax cuts permanent, leaving the economy flat and too many Americans out of work. They also failed to pass a budget for the Federal Government last year.

Because of their obstruction, much of our time since January 7, 2003, when this Congress convened, has simply been devoted to cleaning up the mess left by the failure to get the job done last year under their leadership. And today they are obstructing a vote on President Bush's appointment of one of the most talented lawyers in our Nation to the Federal bench.

The Democratic leadership seems particularly obsessed and preoccupied with obstructing Mr. Estrada's confirmation. I have wondered why that is. As I have already explained, he is an exceptionally qualified attorney and has an inspiring personal story. The Democratic leadership does not rebut any of that record, and they cannot point to any evidence that Mr. Estrada will not be a fair and just member of the Federal bench who will interpret the law as written, without injecting his personal agenda or political views. Nor can they rebut his stellar record of government service as a law clerk on the U.S. Supreme Court and as a career Justice Department attorney, working under Democrats and Republicans alike. Nor can they rebut the fact that the American Bar Association has unanimously given him the highest possible rating of well qualified.

So you might ask, why are they picking on Mr. Estrada? When I was back home in Texas last week during the Presidents Day recess, I read an editorial from the Dallas Morning News that perhaps gives us some clue as to why the Democratic leadership is so obsessed with obstructing Mr. Estrada's confirmation. They said: "There is a time for talking and a time for voting. The time has passed for the U.S. Senate to talk about Mr. Estrada's nomination. It is time to vote. . . . But . . . Democrats don't relish giving President Bush one more thing to brag about when he goes into Hispanic neighborhoods during his reelection campaign next year."

I could not put it any better myself. The Democratic leadership wants to deny President Bush the opportunity to make history by placing an American success story, an exceptionally talented attorney, and the pride of the Hispanic community on one of the most prestigious courts in this country. Why? I am sorry to say, the answer is for petty partisan purposes. The Democratic leadership is frantic to stop Mr. Estrada, even though a bipartisan majority of the Senate stands ready to confirm him.

But how do you do that? How do you convince a majority of Senators to vote against such an exceptional individual? When you have such an obviously qualified person in Mr. Estrada, there is only one thing that the Democratic leadership can do to stop him. There is only one tool of obstruction left and that is to change the rule and to create an unfair double standard.

Mr. President, the only tool of obstruction left for those who oppose this nominee is simply to change the rules. The American people will not stand for such unfair and childish behavior in the Senate.

Faced with a nomination of the President's exceptional nominee, the Democratic leadership has no real evidence, no real facts, no real justification with which to oppose Mr. Estrada. As the Austin American Statesman has editorialized: "If Democrats have something substantive to block Miguel Estrada's confirmation to the U.S. Court of Appeals for the District of Columbia, it's past time they share it."

I would refer Members to an excellent letter of February 12, 2003, signed by White House Counsel Alberto Gonzales, which responds to Senator Daschle's and Senator Leahy's renewed request for confidential Department of Justice memos written while Mr. Estrada worked in the Office of Solicitor General, including for 4 years during the Clinton administration.

Mr. President, I ask unanimous consent that a copy of that letter be printed in the RECORD.

Mr. CORNYN. The first instance of a double standard being applied to Mr. Estrada by those who oppose an up-or-down vote is that, as opponents charge, Mr. Estrada cannot serve on the D.C. Circuit Court because he has no judicial experience. Yet the fact is that a majority of the judges who currently serve on that court had no prior judicial experience. That's right, they never served as a judge before the Senate voted to confirm them to serve in that important position.

Let's take one case as an example. Judge Merrick Garland was nominated by President Clinton and confirmed by a Republican-controlled Senate. Like Mr. Estrada, Judge Garland graduated from Harvard Law School magna cum laude, clerked for a prominent judge on the Second Circuit, and then later clerked for a Supreme Court Justice. Both Mr. Estrada and Mr. Garland served as assistant U.S. attorneys. Both worked at the Department of Justice in Washington, D.C. Both practiced law in the private sector. Both enjoyed bipartisan support, and neither had prior judicial experience. It took the Senate just a few months to confirm Judge Garland.

Meanwhile, Mr. Estrada has waited 21 months, and still the Democratic leadership will not allow a vote on his confirmation.

But why stop there? If prior judicial experience were really so important to serving on a Federal court of appeals, why did the Senate vote to confirm Thurgood Marshall to the Second Circuit? Why did the Senate vote to confirm Stephen Breyer to the First Circuit? Why did the Senate vote to confirm Ruth Bader Ginsburg to the DC Circuit? And why did the Senate confirm John Paul Stevens to the Seventh Circuit? Indeed, why did the Senate confirm Anthony Kennedy to the Ninth Circuit? None of these individuals, all of whom have subsequently served on the U.S. Supreme Court, had any prior judicial service before they were nominated to the circuit courts and confirmed.

Moreover, since the beginning of the Carter administration in 1977, the Senate has approved 38 nominees to the Federal courts of appeals who have previously worked at the Justice Department but never held judicial office, exactly like Miguel Estrada.

There is also a double standard being applied when opponents to calling an up-or-down vote, advocates and proponents of this obstructionism, claim that Mr. Estrada cannot be confirmed until the Justice Department hands over all confidential documents he wrote as an Assistant to the Solicitor General.

This request would be too laughable if it was not so transparent and so cynical. First, Mr. Estrada does not even have control of these memos, and he has said he does not object if the Justice Department decides to release them. Second, Senator Daschle and Senator Leahy know, were Mr. Estrada to somehow provide it, that it would violate ethical rules which benefit the American people and the entire U.S. Government, including Congress, whose acts the Department of Justice is charged with defending and enforcing in court.

Of course, this fishing expedition is unprecedented evidence, again, of a double standard being applied to Mr. Estrada. Since the beginning of the Carter administration in 1977, the Senate has confirmed 67 nominees to the Federal courts of appeals who have previously worked for the Justice Department, including seven who worked as Deputy Solicitors General, or Assistants to the Solicitor General. Yet in none of these cases was the nominee required to produce such materials protected by the attorney-client privilege. In fact, the Justice Department has determined that the Senate did not even request such materials for a single one of those 67 nominees.

Again, Mr. Estrada served in the Solicitor General's Office during the entire first term of the Clinton Administration, from 1993 to 1997. That means the Solicitors General for whom he worked during that time were all Democratic political appointees of President Clinton. None of these Solicitors General, I believe it is significant, have raised any objection to Mr. Estrada. Moreover, all former Solicitors General, all former living Solicitors General, both Democratic and Republican, for ethical reasons, oppose the request for these documents made by Senator Daschle and Senator Leahy.

There is a third double standard being applied to Miguel Estrada by the Democratic leadership, those who would obstruct an up-or-down vote on this highly qualified nominee. They claim he has inappropriately refused to answer specific questions indicating how he would rule on specific legal questions that might come before him as a judge. Mr. President, Miguel Estrada is not running for election. He seeks to be a judge. It would be both wrong and unfair for him to prejudge those issues, issues that might well come before him as a judge. Indeed, this principle has been recognized by Supreme Court Justices Stevens, Souter, Breyer, and Ginsburg, who recently explained:

[H]ow a prospective nominee for the bench would resolve particular contentious issues would certainly be "of interest" to the President and the Senate in the exercise of their respective nomination and confirmation powers. .    .    . But in accord with a longstanding norm, every Member of [the Supreme] Court declined to furnish such information to the Senate. .    .    . [T]he line each of us drew in response to preconfirmation questioning .    .    . is crucial to the health of the Federal Judiciary.
I will not belabor the point here, but the letter written by White House Counsel Alberto Gonzales documents numerous Clinton judicial Federal nominees who answered just as Mr. Estrada did, just as these U.S. Supreme Court Justices did, to similar questions posed by the Senate Judiciary Committee. Yet all of these nominees were confirmed.

It becomes abundantly clear on examination that the Democratic leadership, so bent on obstruction of any up-or-down vote on Mr. Estrada's confirmation, is not really interested in the answers to these questions as they claim. Consider this: After a whole day of hearings, the Senate Judiciary Committee released Mr. Estrada. They didn't ask him to come back and answer more questions. They released him. While it is common practice for members to submit follow-up questions to the nominee, only 2 of the 10 Democratic Senators on the committee bothered to ask only a few followup questions, in stark contrast to other nominees who have received voluminous written questions.

So I say there is really no objection that Mr. Estrada has failed to comply with the Senate's traditional standards for confirming nominees by refusing to answer specific questions. Yet this is just another example of the Democratic leadership's double standard that seeks to stop Miguel Estrada.

Finally, Democrat leaders are seeking to impose a double standard by insisting that 60 Senators must vote to close debate before a vote can be had on Mr. Estrada's confirmation.

This is not legislation. This is a confirmation. The Constitution does not say 60 Senators must approve a judicial nomination. The Constitution does not say two-thirds of Senators must give advice and consent to a judicial nomination, as it does specifically say with regard to treaties. It just says the Senate shall give its advice and consent, which means a simple majority vote—not two-thirds of the Senate, but 51 votes. The fact is that 51 Senators—indeed, 54, as I count them, a bipartisan majority of this Senate—stand ready to confirm Mr. Estrada to the U.S. Court of Appeals for the District of Columbia Circuit if they would just be allowed to vote.

According to the Congressional Research Service, no judicial nominee to the circuit court of appeals has ever been denied confirmation by filibuster—not once in the entire history of the Senate. Yet the Democratic leadership has seen fit to change the rules again—another double standard—as their only hope for stopping a bipartisan majority of the Senate from confirming the superbly qualified Miguel Estrada.

But one of the most remarkable things I have seen in the last 3 weeks as I have observed this debate was an argument that was featured on the final day of Senate debate before the President's Day recess. On Friday, February 14, the senior Senator from Illinois argued in effect that the Constitution forbids confirming Mr. Estrada because the Senate has not sufficiently investigated him.

I quote from my colleague's speech on the Senate floor:

[U]nder the Constitution, which we have sworn to uphold, and which we take very seriously, in article II, section 2, it says:

The President .    .    . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint .    .    . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for. .    .    .

This tells those who are watching that what is at stake here is not just a discretionary decision by the Senate as to whether or not we will investigate a judicial nominee. We have a constitutional obligation. And if we believe in that investigation that a nominee is wanting, might not be a person suited to serve in the Federal judiciary, I think we are duty bound to vote against him.

I am dumbfounded by this constitutional argument, particularly coming from a member of the Senate Judiciary Committee. Of course, we would welcome that vote he speaks of, even if some, based upon an erroneous constitutional standard, would choose to vote no on this nominee.

But for the life of me, I cannot understand why the Senator can make such an argument based on any review of the Constitution or the history of judicial confirmations. The only thing I can think of is that my colleagues on the other side of the aisle—some of them anyway, because, as I said, there is a bipartisan majority of the Senate that stands ready to confirm Mr. Estrada today—but at least the Democratic leadership has simply decided to do whatever it takes and to make any argument, no matter how implausible, however devoid of any basis in law or in fact, to maintain this unprecedented filibuster against an exceptionally qualified nominee.

The filibuster effort appears to have become so desperate, in fact, that they might even argue that the Constitution requires a filibuster. I know, however, that the Senator from Illinois takes the Constitution very seriously, as all of us do. And so I hope I can just take a few moments to discuss what the Constitution contemplates in this regard and convince my colleague to reconsider his argument.

My distinguished colleague, the senior Senator from Illinois, argues that for the Senate to confirm Mr. Estrada now would violate the Constitution because the Senate has failed to conduct an adequate investigation. I would be the first to say the Senate's advice and consent function is indeed an important function, particularly when you are dealing with lifetime-tenured judicial appointees. Each of us indeed has undertaken an oath to "support and defend the Constitution of the United States."

That Constitution includes a firm commitment to the doctrine of separated powers. Under the Constitution, the Congress legislates, the President executes the laws, and it is the courts that interpret the laws—not make laws.

It bears repeating. Judges interpret laws. They aren't legislators wearing black robes—at least they are not supposed to be. The only body of our Government that legislates is the Congress. The Constitution, of course, demands that judges respect this fundamental distinction—one that, in the debates on this nominee, some seem to have been glossed over. I recall even one argument by the senior Senator from Vermont to the effect that Mr. Estrada ought to have to basically run on a platform, as he would when he runs for election to the U.S. Senate from Vermont, making no distinction between the fact that a Senator is a representative, and a judge is a representative of no one other than the law.

I believe in the last 3 weeks that our solemn duty to advise and consent and investigate this particular nominee has been more than complied with. Certainly in the last 2 years every Senator in this body has had more than an adequate opportunity to investigate and study Mr. Estrada's qualifications. I can't imagine any judicial nominee who has been more vigorously investigated than Mr. Estrada. So we are hardly talking about the Senate being railroaded into confirming an individual without time to think, without time to reflect, without time to investigate, and after a full and thorough debate.

Mr. Estrada has been very clear about his judicial philosophy. He has said that nothing in his personal views would prevent him from following the law. That is very important in a judge. We want to make sure that the only judges we confirm are those who will follow the law as written by the legislature and is handed down in precedents by the U.S. Supreme Court.

The Senate has undertaken a substantial investigation into Mr. Estrada already, and in so doing has developed a record that amply supports Mr. Estrada's sworn testimony about how he would conduct himself as a judge.

That record includes strongly supported statements from numerous witnesses across the political spectrum, including prominent Clinton Administration lawyers. I go back to Ron Klain, whom I mentioned earlier was Vice President Gore's Chief of Staff and a former Democratic chief counsel to the Senate Judiciary Committee. He has known Mr. Estrada since their days together at Harvard, and has concluded that Mr. Estrada would "faithfully follow the law."

President Clinton's Solicitor General, Seth Waxman, flatly rejected any notion that "the recommendations Mr. Estrada made or the analyses that he prepared were colored in any way by his personal views." A bipartisan group of 14 of Mr. Estrada's former colleagues in the Office of Solicitor General have written:

We hold varying ideological views and affiliations that range across the political spectrum, but we are unanimous in our conviction that Miguel would be a fair and honest judge who would decide cases in accordance with the applicable legal principles and precedents, not on the basis of personal preferences or political viewpoints.

I could go on and on.

The FBI has investigated Mr. Estrada and given him a clean bill of health. The American Bar Association has investigated him and given him a unanimous well-qualified rating—the highest that the American Bar Association has to offer.

The Senate has more than discharged its responsibility, with respect to Mr. Estrada, to confirm as judges only those individuals who respect the law and who respect the distinction between judging and legislating, those who will not politicize our courts, and those who will put aside personal views and enforce laws as written by Congress and by our Founders.

I submit that our colleagues who oppose this vote on this highly qualified nominee have again changed the rules and imposed a double standard by contending that, not withstanding this ample record and vigorous investigation, the Senate must still go further and must inquire evermore deeply into Mr. Estrada's personal views. When confirmed, Mr. Estrada will behave as a judge and not as a legislator. The Senate needs nothing further in order to confirm him to the Federal bench other than to simply vote.

The Constitution requires a majority of the Senate for an individual to be confirmed to judicial office. Although this is an important function, it is also the lowest threshold level of Congressional participation contemplated anywhere in the Constitution. By contrast, to enact legislation requires a majority of both Houses of Congress, not just the Senate. To authorize the President to ratify a treaty requires a two-thirds vote of this body. To impeach and convict a Federal official requires the approval of both Houses of Congress, including two-thirds of the Senate. Amending the Constitution and overriding a Presidential veto requires two-thirds of both Houses of Congress. In other words, the Constitution makes it easier for the Senate to confirm judicial nominees than it does to enact legislation, consent to treaties, punish an official during an impeachment effort, or to amend the Constitution.

Professor Michael Gerhardt, a constitutional scholar and author of a scholarly volume called "The Federal Appointments Process," has reviewed all of these constitutional provisions and compared them to the Senate's advice and consent function with respect to nominees and concluded that "[t]he Constitution .    .    . establishes a presumption of confirmation"—a presumption of confirmation—"that works to the advantage of the President and his nominees." In fact, I think Mr. Gerhardt is on to something.

Here again, this is not just about Miguel Estrada. The Democratic leadership seeks to defeat a constitutional presumption of confirmation in the judicial confirmation process. They are still fighting the last election by and through the person of Miguel Estrada. Although the country has embraced this President and his great leadership, the Democratic leadership is still fighting against it, seeking to defeat President Bush wherever and whenever they can.

The constitutional structure demonstrates that the Senate's role is satisfied when the record makes clear that whatever a nominee's personal views, that they will play no role in how the nominee will judge specific cases and controversies. After all, to do otherwise would mean that it would take practically all of the Senate's time to confirm Presidential nominees, leaving no room for legislation, treaties, and other matters to which the Constitution gives even more responsibility to Congress than in the confirmation process.

The Constitution nowhere requires a majority of the Senate to undertake a full-blown trial of a judicial nominee. Yet that seems to be what the Democratic leadership is asking for. Quite to the contrary, the Framers of the Constitution well understood that the Senate's role in the process is really quite limited—something it does us well to reflect on, with the confirmation process today so skewed and so poisoned, and so toxic, toxic not only to the nominees but also to this body.

As Alexander Hamilton explained in the Federalist Papers, the Constitution gives the Senate a confirmation role to ensure that the President has not injected cronyism into his appointment process. Alexander Hamilton does not say that the Senate is supposed to second-guess the President's judgment or to conduct a deep and searching inquiry into the legal views of the nominee—the sorts of things that are being asked for here. Instead, Alexander Hamilton writes, in Federalist No. 76:

To what purpose then require the cooperation of the Senate? .    .    . It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

Indeed, far from indicating that substantial hearings and investigation would be required, Hamilton noted that the Senate's confirmation role would be, "in general, a silent operation."

Hamilton's understanding of the confirmation process—that it would largely be what he called "a silent operation"—is reflected in the text of the Constitution. By contrast, the impeachment provisions of the Constitution require the Senate to undertake an actual trial before an official can be punished, including removal from office.

So it is clear that the text, the structure, the original understanding, and, indeed, the tradition of confirmation proceedings handed down these last 200 years all refute the theory of Senate advice and consent suggested by those who would obstruct this vote, including the views expressed by the senior Senator from Illinois and those who would espouse a new standard, one made of whole cloth, again changing the rules and applying a double standard to Miguel Estrada.

Once the Senate has determined that an otherwise qualified judicial nominee respects the law and understands that judges interpret the law and do not make the law, that nominee may be confirmed to the Federal bench. It is absurd to think that the Constitution would require anything else.

Moreover—and this is significant, to show how far afield we have come from the confirmation process as practiced by the Founding Fathers and those in the last 200 years—for much of our Nation's history, the Senate did not even conduct confirmation hearings, not even for nominees to the U.S. Supreme Court. Instead, the Senate either deferred to the President's determination that the nominee would abide by constitutionally required distinctions between judging and law making, or would reject nominees without resort to intrusive hearings.

Indeed, the Senate Committee on the Judiciary did not even exist during the first half century of this country's existence—nearly 30 years after the ratification of the Constitution. It did not even exist until 1816. And even when such hearings were later held in our Nation's history, by custom, the nominee would not even appear.

The first extensive hearings on a Supreme Court nominee were not held until the nomination of Louis Brandeis in 1916. Yet despite those hearings, Mr. Brandeis never even appeared in person before the Senate or a committee.

On September 5, 1922, the day after Justice John Hessin Clarke resigned, President Harding nominated George Sutherland to the Supreme Court, and the Senate confirmed him that very day. It was not until Harlan Fiske Stone, in 1925, that the first nominee for the U.S. Supreme Court would actually appear in person before the Judiciary Committee, and even that was a novel episode, after which nominees would revert back to the tradition of not appearing personally before the Judiciary Committee. That tradition continued for over a decade, until Felix Frankfurter testified before the Senate Judiciary Committee in 1939. Even then, Justice Frankfurter read a prepared statement in which he said he would not express his personal views on controversial issues before the court, the same answer that Mr. Estrada has given in response to the questions asked him during these proceedings.

As late as 1949, Sherman Minton refused to appear before the Senate Judiciary Committee and was still confirmed. And it was not until 1955, when John Marshall Harlan started the modern tradition of judicial nominees appearing and testifying before the Senate. And even then, confirmation hearings have typically been brief, even in cases of Supreme Court nominations. Justice Byron White's confirmation, for example, in 1962, lasted less than 2 hours.

Can it really be the position of the senior Senator from Illinois or our colleagues across the aisle who are blocking a vote on this nomination that the countless Federal judges and Supreme Court Justices who were confirmed following a less extensive investigation than that already inflicted on Mr. Estrada all served pursuant to illegal confirmations? Did so many of our predecessors in the Senate violate the constitutional oath they took on each and every one of those occasions? Of course not.

The nomination of Miguel Estrada is the unfortunate culmination of a destructive judicial confirmation process that must stop. It must stop for the health and the proper functioning of this institution. It must stop so that the confidence of the public in the job we are here performing on their behalf can continue. This destructive judicial confirmation process must stop, so that Presidents, now and in the future, will be able to nominate candidates for judicial office, who otherwise might not be willing to subject themselves to this unreasonable process that has been so much in evidence during the course of Miguel Estrada's confirmation.

The obstruction must stop. The double standard for Miguel Estrada must stop. This filibuster especially must stop.
Across the country, the American people are insisting that the Senate take a vote on this exceptional and inspiring candidate for the Federal bench. Newspapers across my State of Texas—the Dallas Morning News, the El Paso Times, the Austin American-Statesman, the Fort Worth Star-Telegram—are all urging that the Democratic leadership permit a vote on this nominee.

I say let's stop the games. Let's stop the double standard. Let's vote. Of course, every Senator is entitled to vote according to the dictates of their conscience, but let's vote.

There is no basis for the current unprecedented attempt to deny a bipartisan majority of the Senate from the opportunity to even vote up or down on this nominee. That has never before happened in the history of the United States.

It should not start today. It should certainly not start against a nominee of such exceptional talent. In the words of the Washington Post: "Just vote."

I yield the floor.