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

Mr. SCHUMER. Mr. President, this is going to be a long debate, whatever happens. I very much appreciate the sincere concerns of my colleagues from Utah and Pennsylvania.
    
I say to my friend from Pennsylvania before he leaves, he asked, if Miguel Estrada cannot get confirmed, who can? I, for one, have voted for 96 of the 102 judges President Bush has nominated. We passed over 100 of them.
    
There seems to be an idea on the other side if we oppose a single judge we are totally blocking the President's program. I argue just the opposite. I argue to my friend, as he well knows because he knows the Constitution better than just about anyone else in this Chamber, with maybe the exception of our good friend from West Virginia, the Founding Fathers wanted debate. They wanted the Senate to have a role. Read the Federalist Papers. That is how it was for many years.
    
To sum up, the White House has started to nominate ideological nominees—not like President Clinton, not like the first President Bush—but when we try to examine the ideology of these nominees, that is wrong. We do virtually no moderates before us. Everyone is from conservative, to way out of the mainstream, and we have voted for most of the conservative judges. Let's be honest about it. This debate was not started by Democrats in the Senate. This debate was started by a White House that is intent on changing the character of the Federal bench, to go way beyond what is the mainstream of America. Everyone will agree, Justice Scalia and Justice Thomas are the two most conservative judges on the court. President Bush said it in his campaign. He said: I will nominate Justices like Scalia and Thomas.
    
That is not saying moderation. He promised the American people moderation when he ran. But when it comes to the article III section of Government, we don't see a drop of moderation.
    
We will continue to make this argument because we believe we are defending the Constitution. We are doing just what James Madison and John Jay and Alexander Hamilton and all of the great writers of this Constitution wanted us to do, which is have some influence on the article III section of Government.
    
I am going to speak at some length, which is not what I usually do here. I usually say I think you can say everything in 5 or 10 minutes. But this issue is so important to me that I intend to be on the floor here today for a period of time, and regularly after that.
    
I rise in opposition to the nomination before us today. Mr. Estrada has been nominated to a lifetime appointment, a lifetime seat on the DC Circuit, the Nation's second most important court. If confirmed, this 42-year-old man will spend the next half century making important decisions that will affect our children, our grandchildren, our great-grandchildren, and generations beyond. If we vote to confirm Mr. Estrada, there is no going back. There is no opportunity to look at what he does in his first years as judge and reconsider. The vote here is final. If he is confirmed, we are all going to have to live with the consequences for decades to come.
    
So this is not a trivial matter. This is not a trifling matter. This is one of the most important matters that comes before us. The ability to ratify or reject a President's nomination to a lifetime appointment in article III, the third branch of Government, is a solemn obligation. It is one that should not be taken lightly. To rush through the nomination, to not have questions fully answered and explored, does violation to the very Constitution that we all revere. Yet that is what the other side is asking us to do.
    
The Senate has a solemn, almost sacred duty when evaluating applicants for such powerful posts.
    
Mr. SCHUMER. That is for each of us to judge, whether a nominee who is worried about his confirmation should not speak about any case he might disagree with, whether it be 40 years or in all of jurisprudence.
    
But I just wanted to say, if you look at the record, it is clear. I gave him many different opportunities to answer that question. I asked the question in different ways. I came back to it. And Mr. Estrada didn't answer. To the average citizen who looked at it, he was stonewalling. He was just not giving answers that every law professor, or law student, or lawyer when asked would venture a guess at.
    
Let me tell you why many of us think he refused to answer the question. I would like my colleagues to hear this, because I don't think this has come out. Mr. Estrada stonewalled because that is the game plan he was given by the Justice Department and the White House. They told him not to answer questions. That was what they told him to do. Because again, they know Mr. Estrada's views. They do not want anybody else to know, because I believe if they were revealed, they are so far out of the mainstream he would not be approved. I don't know if that prediction will prove to be true. Maybe we will know, if we find the views on the issue.
    
But there is no secret to this. This has been the game plan of those who have sought to stack the judiciary to the far right side for years.
    
Let me review with my colleagues an article in the Legal Times which talked about a meeting that Judge Laurence Silberman—a leading conservative judge, a very erudite man, but he shared his strategy with prospective judicial nominees at a Federalist Society meeting just last year.
    
The Federalist Society is the breeding ground for most of the States rights agenda, supporting nominees the administration is sending us. It is no secret that Federalist Society members are among the most active in the White House and Justice Department in choosing judges. I will let the American people judge for themselves, but most believe the Federalist Society is not moderate and not conservative but way over to the hard right.
    
Judge Silberman appeared along with Senator Kyl and Fred Fielding, President Reagan's counsel, to discuss with the group how to get these out-of-the-mainstream nominees on the bench, because they realized if they told the truth, they would have a difficult time because America is not far left or far right but moderate.
    
If President Clinton tried to stack the bench with far left nominees, we heard howls. He did not. But that is just what President Bush is trying to do. President Clinton, as I mentioned, nominated mostly partners in law firms and prosecutors, not many legal aid society people, not many ACLU advocates. President Bush is not doing the mirror image himself.

Mr. SCHUMER. I will try to finish as quickly as possible, in deference to my good friend from New Mexico.
    
So we don't have much on the record about Mr. Estrada. That is why his papers as Solicitor General mean so much. Because when Mr. Estrada worked in the Justice Department, he looked at cases and analyzed them and assessed the constitutionality of laws. That is, for all intents and purposes, what appellate judges do. Unlike a lawyer in a law firm who is looking out for a client with a vested interest, Mr. Estrada was working for the Government. His client was the Constitution. His memos would help show how he interprets the Constitution. Similar memoranda have been requested and produced when Congress was evaluating other nominees, both to the executive and judicial branches, creating ample precedent for such a request.
    
I know there has been a series of letters that have gone back and forth. I know we have differing views about the propriety of sharing these memoranda. But one thing is clear, there is precedent because others, including Bradford Reynolds and Justice Rehnquist, submitted those papers. It is clear there is no privilege. And it is clear these memos are needed to lift the veil covering whatever it is Mr. Estrada wants to remain covered.
    
So, in other words, because we have so little information on how Mr. Estrada thinks, these memos are more important to understand his thinking than they would be for the typical judicial nominees.
    
Mr. Estrada did work that was quintessentially judge-like, but we are being denied the opportunity to examine it, evaluate it, and assess for ourselves what kind of judge he would be. That doesn't seem right. A former supervisor has charged that Mr. Estrada advocated extreme positions, more aligned with his own interests than the Government's interest, when he was Solicitor General.
    
My friend from Utah said at a hearing that he had backed off those positions. He has not backed off those positions.
    
Many have said: Well, his evaluations were excellent.
    
We have talked to Mr. Bender, and he has said, first, when you look at those evaluations, they don't talk about his views and whether he would have fidelity to the Constitution or try to impose his own views. They talk about whether he was a hard worker. But what Mr. Bender said is: Everyone gets checked off excellent on those—we will have to check the record there—because it helps them get merit advancements.
    
So here you have the supervisor saying he was extreme, saying he would take his own views and not follow the law. Guess what the best way is to disprove that supervisor. Make the memos public. If the memos prove the supervisor wrong, Mr. Estrada has nothing to fear from their disclosure. If the memos prove the supervisor is right, this is someone no one in the Senate should want on the DC Circuit.
    
Mr. President, I have always used three criteria in evaluating judicial nominees. I call them excellence, moderation, and diversity.
    
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 recommends him, that is all they are evaluating.
    
My second criteria is diversity. Clearly, he passes on this point. I have fought for as long as I have been in public service to promote diversity. A principal goal of mine in New York is to put more people of color on the Federal bench—and I have, as my record shows. We are going to talk a lot about the push for diversity, and we are going to see Mr. Estrada is the only Hispanic nominee of President Bush. Diversity seems to be limited at this point to Mr. Estrada when it comes to the court of appeals; whereas, those of us on this side, in the Hispanic caucus and others who oppose the nomination, have done far more for diversity than those who claim they are moving its cause forward today. In any case, I am for diversity. I will not talk more about that today. I will give that part of the speech next week.
    
The third factor forces me to take the floor today, and that is moderation. I don't like judges too far to the right, and I don't like them too far to the left. To be honest with you, when my judicial committee sends me recommendations, those are their instructions. I think judges too far left, as well as those too far right, want to make the law, not interpret it. I think they don't belong on the bench, with certain exceptions—rare, but certain.
    
So is Mr. Estrada moderate? Is he even a moderate conservative? Well, he gives every appearance of being extreme. People who know him say that, people who have talked to him about his views. That is one of the reasons, again, many of us feel he doesn't want to speak out, because if we knew his real views, he might well be rejected. Why has the Congressional Hispanic Caucus, the Puerto Rican Legal Defense and Education Fund, and the Mexican American Legal Defense Fund opposed Mr. Estrada? These groups have acted courageously in opposing him because they share my commitment to promoting Latinos on the Federal judiciary. I have worked with them for years to diversify the bench. But the concerns about his views are overwhelming.

Let me tell you what Mr. Paul Bender had to say. He oversaw Mr. Estrada's work in the Solicitor General's office. He said he was too much of an ideologue to serve as a Federal judge. Mr. Bender said Mr. Estrada would bring his own personal agenda—an extreme agenda—to the courts if we confirm him.
    
My friend from Utah suggested Professor Bender has backed off. I assure my colleagues that is not the case. He stands by them 100 percent.
    
Again, my friends on the other side have suggested Bender is not credible because he gave Mr. Estrada high marks on his work evaluations. Every one of those evaluations went to legal excellence. I am not disputing that. Those evaluations did not deal with Mr. Estrada's potential extreme ideological nature.
When Ms. Coulter says Miguel Estrada will overrule everything Mr. Begala cares about, it is not hard to worry that he will be another in a long line of rightwing judicial activists who prioritize States' rights over people's rights.
    
This is a lifetime appointment. Once it is done, it cannot be undone. If we approve Mr. Estrada, he is there for life and his decisions will affect all of us for generations to come. This Senate deserves a full and open debate. This Senate deserves answers to questions that may sound esoteric but will affect the lives of every single American. The people of this country, the American people, deserve these answers. They are so important to the future of this country.
    
When you have judges who try to make law, they make this Senate, the House, and the President—the elected branches of Government—less significant and less important. I say to my colleagues, many of us on this side of the aisle feel very strongly about this issue. We urge Mr. Estrada and the administration to reconsider. We urge them to give a fulsome view of how Mr. Estrada feels on the important issues of the day, and not simply to say he has a good legal mind, not simply to talk about the fact he has a nice history—which he does, and I give him credit for it—but to talk about the main thing that will influence what he does when he becomes a judge—his views.
    
We will continue this debate over the next few weeks and it could be one of the Senate's finest moments. I hope—no, I pray—we will rise to the occasion.
    
I yield the floor.