Withdrawal of Estrada Nomination

WITHDRAWAL OF ESTRADA NOMINATION

Mr. HATCH. Madam President, I rise today to speak on the unfortunate withdrawal of the nomination of Miguel Estrada for the United States Court of Appeals for the District of Columbia Circuit. It is truly a sad record that the Senate, for the first time ever, has terminated a circuit court nomination by filibuster rather than by an up-or-down vote. It is particularly troubling that political tactics were used to destroy this extremely qualified nominee.

Let me state that a clear majority of this body supported this nomination, as has been demonstrated in the unprecedented seven cloture votes which have taken place. So it is regrettable that a minority of Senators followed their script of extraordinary obstructionism to prevent the Senate from concluding the debate on this nomination and proceeding to a final vote. It goes against all the honorable traditions of this body for Senators to rest behind a veil of procedural votes rather than taking a public stand on the merits of this outstanding nominee.

After all, all he or any of us wanted was an up-or-down vote, something we have always given every nominee who has come to the Senate floor and has been called up on the Senate floor.

While it is shameful that Miguel Estrada was subjugated to political whims, it is not entirely surprising. Opponents from the very outset, for their own ideological purposes, have been determined to defeat this nomination. Last fall, a Democratic staffer on the Judiciary Committee was quoted in the Nation magazine as saying:

Estrada is 40 and if he makes it to the circuit then he will be Bush's first Supreme Court nominee. He could be on the Supreme Court for 30 years and do a lot of damage. We have to stop him now.

So it appears that the real reason for the filibuster against Miguel Estrada was the concern by opponents of a possible Justice Estrada on the U.S. Supreme Court.

An editorial appearing in the Atlanta Journal-Constitution said it best:

The fear with Owen and Estrada is that one or both will be nominated to the United States Supreme Court should a vacancy occur. Senate Democrats are determined to keep off the circuit court bench any perceived conservative who has the credentials to serve on the United States Supreme Court.

There is an additional factor not based on any substantive objection to his nomination. I believe some Senate Democrats do not want the current President, a Republican President, to appoint the first Hispanic as the U.S. Circuit Court Judge for the District of Columbia Circuit. Let me read from an editorial published by the Dallas Morning News addressing this point.
On February 17, 2003, the News wrote:

Democrats haven't liked Mr. Estrada from the beginning. Part of that is due to his ideology—which is decidedly not Democratic. But part of it also has to do with the fellow who nominated him. Democrats don't relish giving President Bush one more thing to brag about when he goes into Hispanic neighborhoods when he goes into his reelection campaign next year. They are even less interested in putting a conservative Republican in line to become the first Hispanic Justice on the Supreme Court.

In an effort to prevent Mr. Estrada's confirmation, his opponents resorted to a number of troubling tactics. During his hearing there were frequent attempts to inject political ideology into the judicial nomination process. This was most evident as related to questions about his views on Roe v. Wade, the apparent litmus test for many Senate Democrats.

In response to this concern, he offered cases he had taken on as an attorney to illustrate his commitment to following the law instead of imposing any political agenda. He also testified under oath that he would follow Roe and Casey if he were confirmed. But even his outstanding record and testimony before the committee was apparently not enough to satisfy those determined to destroy his nomination.

Opponents repeatedly raised red herring issues with two additional demands. One was that Mr. Estrada answer their questions, though the record is clear that his responses were complete. Mr. Estrada spent hours during a day-long hearing answering my Democratic colleagues' questions. He answered written questions submitted after the hearing, although only two, only two committee Democrats bothered to ask him written questions.

He gave answers to questions that were substantially similar to answers given by Clinton nominees who were confirmed.
Yet my Democratic colleagues continue to complain that he had not answered their questions. Really, their complaint is that in answering their questions, Mr. Estrada did not say anything that gave them a reason to vote against him. Simply put, they were not really interested in his answers to their questions. They were interested only in defeating his nomination.

This is why every effort to make Mr. Estrada available to answer additional questions has gone virtually unacknowledged.
Only one Democratic Senator met with Mr. Estrada and only one submitted written questions to Mr. Estrada after the
floor debate on his nomination began.

Their second demand was the unreasonable request that the administration release confidential internal memoranda he authored at the Solicitor General's office. This issue has been fully debated. The short response is that never before has a Presidential administration released confidential appeal, certiorari and amicus recommendations on the scale that my Democratic colleagues sought from Mr. Estrada. They attempted a full-scale fishing expedition, pure and simple, and the Justice Department was right to oppose it.

Furthermore, this demand constituted a double standard for Miguel Estrada. The Judiciary Committee confirmed numerous Clinton circuit court nominees who, like Miguel Estrada, had no prior judicial experience. A number of these nominees had worked in the Justice Department or other branches of the Federal Government, but Senate Democrats made no demands for their confidential memoranda or privileged work product. Yet Senate Democrats persisted in this demand, knowing full well that for sound reasons the administration, with the support of all seven living former Solicitors General, both Democrat and Republican—four of them were Democrats—would not and could not accede to that request.

When all other tactics failed, opponents turned to their ultimate weapon, the filibuster. Filibusters of judicial nominees allow a vocal majority to prevent the majority of Senators from voting on the confirmation of a Federal judge, a prospective member of our third, coequal branch of Government. It is tyranny of the minority and it is unfair to the nominee, to the judiciary, and to the majority of the Members of this body, and to the President. The unprecedented filibuster of Mr. Estrada was certainly unfair to a majority of Senators who stood ready to fulfill their constitutional responsibility by voting on Mr. Estrada's nomination.

It has been more than 2 years since Miguel Estrada was nominated by President Bush, on May 9, 2001, and nearly a year since his hearing before the committee. In all of that time, my Democratic colleagues had unlimited opportunities to make their case. Some of them opposed him. Others supported him. But one thing remained clear through this whole debate: There was no good reason to deny Mr. Estrada an up-or-down vote, the dignity of an up-or-down vote.

On the merits, Mr. Estrada was extremely qualified to serve on the court to which he was nominated. The qualifications of Miguel Estrada are well known to the Senate. He represents an American success story. After immigrating to the United States, after overcoming a language barrier and speech impediment, he graduated magna cum laud and Phi Beta Kappa in 1983 from Columbia College. At Harvard Law School he was an editor of the Harvard Law Review and graduated magna cum laude in 1986.

Mr. Estrada's professional career has been marked by one success after another. After graduation, he clerked for Second Circuit Judge Amalya Kearse, a Carter appointee and then Supreme Court Justice Anthony Kennedy. He worked as an associate in the distinguished firm of Wachtell Lipton in New York. He then worked as a Federal prosecutor in Manhattan, rising to become deputy chief of the appellate division. In recognition of his appellate skills, he was hired by the Solicitor General's office during the first Bush administration. He stayed with the Solicitor General's office for most of the Clinton administration. When he left the Solicitor General's office, he joined the DC office of Gibson, Dunn & Crutcher, one of the great law firms in this country, where he continued to excel as a partner and rose to the top of the ranks of oral advocates nationwide, having argued 15 cases before the U.S. Supreme Court.

The legal bar's wide regard for Mr. Estrada is reflected in his evaluation by the American Bar Association. The ABA evaluates judicial nominees based on their professional qualifications, their integrity, their professional competence, and their judicial temperament. Based on an assessment of all of those factors, the ABA bestowed upon Mr. Estrada its highest rating of "unanimously well qualified."

Yet despite the superb record of Miguel Estrada, opponents chose to deny him a simple up-or-down vote, injecting politics into the judicial confirmation process. Opponents have not only treated Miguel Estrada unfairly; they have further damaged this process.

One casualty is enough. I hope all Senators will consider the dangerous ramifications of the actions of the Senate in causing Miguel Estrada to withdraw his nomination through the use of the filibuster. This should never happen again.

Just one other thing on this. He was asked to comply when he couldn't do it, with a fishing expedition into the Solicitor General's most privileged documents, documents that have never been given in toto as requested by the Democrats, never before. Four Democrat former Solicitors General said they would never give these documents. Those Democrat former Solicitors General and three others said they opposed the release of these documents.

If this was a legitimate request, why didn't they ask for similar documents in the case of John Roberts? In other words, Miguel Estrada was treated completely different from other people. Why didn't Senate Democrats ask for these documents in the case of others through the years who worked in the Solicitor General's office? It was just a red herring that some in the media bought off on, to prevent this man from ever having the dignity of an up-or-down vote on the Senate floor.

The reason they prevented that is because they knew he would have won and he would have won a bipartisan vote in the Senate.

Frankly, filibusters should never occur again. Yet more judicial nominees face continuing filibusters on the Senate floor. We will soon once again put to the test the respect the Members of our body have for our constitutional duty to advise and consent on judicial nominations. We will continue to file for cloture to end debate and to give Priscilla Owen, Bill Pryor, and other judicial nominees that the left is intent on blocking the up-or-down votes they deserve.

These are outstanding nominees. Priscilla Owen broke through the glass ceiling, becoming one of the great partners of a major law firm in this country, and broke through the glass ceiling for women, yet she is being treated like dirt on the Senate floor. Also, Bill Pryor, who has more than shown his propensity to always follow the law, even though the law may differ from his own personal, deeply held beliefs.

There are, no doubt, factions of far left interest groups that are delighted to see Miguel Estrada has withdrawn his nomination. These same groups no doubt will declare victory and mount even more vigorous campaigns in an effort to ensure that other judicial nominees suffer the same fate. From what I understand, some of my colleagues in the Senate share those sentiments. But let me tell you right now, this is no occasion for celebration. We should be embarrassed that Miguel Estrada, having had enough of serving as a political football instead of as a Federal judge, decided to end his nomination.
And we should be embarrassed of the continued attempts to usurp the nomination function from the President and the consent function from the Senate majority.

We should not stand back and allow a minority of Senators to prevent an up-or-down vote on any judicial nominee and especially those once they have come to the floor.

We should not inflict upon Priscilla Owen, Bill Pryor, or any others the same shabby treatment that led Miguel Estrada to withdraw his nomination. These all deserve better. And nominees in the future deserve better. The majority of the Senate that stands ready to confirm the ones I have mentioned deserve better. Most importantly, the American people expect their Senators to hold up-or-down votes on judicial nominees and deserve the opportunity to hold their Senators accountable for the votes they cast on the President's judicial nominees.

I have been around here a long time. Both sides have committed errors with regard to judicial nominees over the years. But nothing has ever reached the dimensions of what has been done to Miguel Estrada. Nothing has even come close. He has been treated in an especially onerous way that no other nominee I know of in the history of the Senate has been treated. He has been singled out primarily because he was viewed as being on the fast track to the Supreme Court, and because he is a conservative Republican Hispanic who might be pro-life and who is on the fast track to the Supreme Court. I don't think anybody who is honest can refute that statement.

I think it is pitiful what has happened. I just hope we wake up in this body and start treating people with fairness which the advise and consent clause of the Constitution demands. I hope that works on both sides.

There were those who wanted to filibuster on our side during the Clinton years. We stopped it. We were not going to set that precedent, nor were we going to do that type of activity. Frankly, everyone who came to the floor had a vote, and only one, if I recall correctly, was defeated by an up-and-down vote. But at least he had a vote. And Miguel Estrada deserved that just as much as any of the past nominees.

Mr. McCONNELL. Madam President, will the Senator yield?

Mr. HATCH. Yes, I yield for a question.

Mr. McCONNELL. I ask my friend from Utah, the chairman of the Judiciary Committee, if it is the case that the President's nominee, John Roberts, and the President's nominee, Miguel Estrada, both served in the Solicitor's Office at some point in their careers?

Mr. HATCH. They both did, and both were nominated at the same time, over 2 years ago.

Mr. McCONNELL. I ask my friend from Utah, the chairman of the Judiciary Committee, if it is also true that the internal work product documents that were requested of nominee Miguel Estrada were not requested of nominee John Roberts.

Mr. HATCH. Absolutely right. They were not requested. There was a different standard used with regard to Mr. Estrada—a very unfair standard knowing that the Solicitor General's Office could not allow a fishing expedition into those documents.

Mr. McCONNELL. Is it not the case that every former Solicitor—most of whom are Democrats—had the view that these internal working documents should not be shared?

Mr. HATCH. That is correct. Four of the seven former Solicitors General who are living today are Democrats, and all seven of them came out and said that these documents should not be given to the Senators of the United States because of their sensitivity and their privileged nature.

Mr. McCONNELL. Is it also not true that nominee John Roberts was confirmed unanimously?

Mr. HATCH. It is true that he was confirmed unanimously.

Mr. McCONNELL. We all know that Miguel Estrada was filibustered to the point where he subsequently withdrew today.

Mr. HATCH. The Senator is correct.

Mr. REID. Madam President, will my friend from Utah yield for a question?

Mr. HATCH. If my friend from Kentucky has concluded.

Mr. McCONNELL. I thank the chairman of the committee for yielding so we could point out the differences in treatment between these two nominees with very similar backgrounds and who were nominated for the same court at the same time.