Executive Session Nomination of Miguel A. Estrada to be United States Circuit Judge for the District of Columbia Circuit

EXECUTIVE SESSION NOMINATION OF MIGUEL A. ESTRADA TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mr. DURBIN. Mr. President, I thank the minority leader for his comments on this Miguel Estrada nomination.

As a member of the Senate Judiciary Committee, I can say we have been very cooperative with the Bush administration. Of the 146 judges, if I am not mistaken—the minority leader can correct me but I think it is in the range of 140, and then there are five or six judges in another lifetime category that some add in, but whatever the number, 140, 146, it is significant—only two nominees to date have been held.

We have a responsibility under the Constitution, as Members of the Senate, to advise and consent to the President's nominees, and that means more than a rubberstamp. In the Miguel Estrada case, he is a person with extraordinary academic credentials and an extraordinary legal background who has refused to provide the Senate and members of the Judiciary Committee important writings he generated which would reflect on his view of the law. He has said we cannot see them.

A few months ago, when we first considered this nomination, the Republican Senator from Utah came to the floor—not Senator Hatch but his colleague Senator Bennett—and suggested maybe the answer to this impasse is for the White House to release these documents for us to review, and once having reviewed them we can decide whether to move forward with this nomination.

I was here and I said I applaud that; I think that is a reasonable standard of conduct. Within hours, the White House came out and said publicly, we will not release them. We do not believe we have to, and we are not going to generate this kind of paperwork that may make Estrada's nomination more controversial. That was the end of the story. That has been the end of his nomination. So it was a conscious decision by the White House not to release documents which may give us an insight into Miguel Estrada and his lifetime appointment to one of the highest Federal courts in the land.

In the Priscilla Owen situation, she is a classic judicial activist. We have nominated and approved scores of conservative judges for the Bush administration. She reached a new level, a level of judicial activism which has put her in a special category with Miguel Estrada.

Now because of those two nominees being held up, we see practices in the Senate Judiciary Committee that are unprecedented. Rule 4, which is this obscure rule of the committee, was put in place by Senator Strom Thurmond years ago to protect the minority. It is now being ignored on a regular basis, twice in the last few months by Senator Hatch. This rule basically says if the majority wants to, they are going to move a nominee regardless of whether there is minority opposition. That was never the practice of the committee. It is now. It is an effort by the Bush administration and their supporters and the Senate Judiciary Committee to basically ignore the precedent.

In the next couple of days, we are going to consider two other nominees, and they are fraught with controversy. William Pryor of Alabama has become a lightning rod on Capitol Hill. If one looks at his background, what he has done as attorney general in the State of Alabama, they can understand why. This is a man who goes far beyond conservatism. His positions on issues far and wide are so controversial. I said during the course of the committee, when one looks at the controversial positions that have been taken by William Pryor, the Attorney General of Alabama, it is like an all-you-can-eat buffet. You do not want to fill up your plate early on with his controversial statements, discriminating against women, because you have to save room for his controversial statements when it comes to the environment and to civil rights.

When it is all over, you are going to need more than one plate to get through the William Pryor all-you-can-eat buffet of controversial positions.

This man is headed for the floor. How did he get here? He got here by circumventing an ethics investigation which was not completed. A decision was made by the Republicans in the Senate Judiciary Committee that we do not need to finish that investigation; we are just going to send him to the floor. Then they went through that shameful display on the issue of his religion, which I hope never again is brought up in the Senate Judiciary Committee but was brought up for William Pryor. Finally, they jammed it through, strong-armed his nomination to the floor, under rule 4.

So here we sit in the minority and what are we supposed to do? Are we supposed to ignore these tactics, this departure from the precedent of the Senate Judiciary Committee? Are we supposed to ignore the fact that at least two, maybe four or five, of these nominees clearly would never have passed through the Senate Judiciary Committee under any other circumstances but for these tactics? I think if we did that, we would be ignoring our constitutional responsibility.

Whether the nominee is William Pryor, Miguel Estrada, or Priscilla Owen, time and again we have to stand and accept our constitutional responsibility to really stand in judgment as to whether these individuals deserve a lifetime appointment to the Federal court. Miguel Estrada, until he is ready to come clean with his writings so we understand who he is and what he believes, I am afraid is going to face the same fate over and over again.

The Republicans can call this to a vote as often as they want.

Our Senate Democratic leader, Senator Daschle, is right: The Democrats will hold fast to the position. Until he is forthcoming and honest and open as to who he is and what he believes, he does not deserve this high appointment to a Federal circuit court. That spells out why we are here.

I also add, I listened for days last week and this week as the Republicans complained we were not spending enough time on the Energy bill; we were finding all sorts of excuses not to get down to the work of the Energy bill. We are certainly not on the Energy bill right now. We were not yesterday when we voted on Priscilla Owen, nor will we be later in the week when other judicial nominations come to the Senate. Any excuse will do to get off that bill, it seems. I had hoped we would stay on it and do our work. I offered my amendment early. Others have done the same. We will continue to make the symbolic votes.

If we are going to have true comity in this institution, if we are going to have a cooperative relationship, it will require us to deal with this on a bipartisan basis. I urge my colleagues to continue to oppose the nomination of Miguel Estrada.