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

Mr. SCHUMER. I thank the Chair.
    
Mr. President, I very much thank my colleagues from Utah and Iowa for going through the order we did. I have spoken about this issue before for what, at least for me, is an uncharacteristically long amount of time. I did not finish what I had to say then. There is more to say. I wish to take up where I left off.
    
We are beginning to hear that anyone who opposes Mr. Estrada is anti-Hispanic. I have to tell you, Mr. President, I am disappointed in that rhetoric. I think it is low, I think it is not appropriate, and I think it is a way of hiding the real feelings here.
    
I cannot confine my remarks to such expressions because they do not begin to convey how deeply offensive those statements are. We deserve an apology, the American people deserve an apology, and, frankly, Mr. Estrada today deserves an apology.
    
This is not a debate about Mr. Estrada's ethnic background, plain and simple, and everyone in this Chamber knows it. It is a cheap argument to invoke.
    
Let me tell you, Mr. President, what this debate is really about. This debate is about whether the Senate should automatically defer to the President or whether the Senate should fully exercise its constitutional powers and closely examine Mr. Estrada before we hand him a lifetime appointment to the Nation's second most important court. This debate is about whether we should blithely rubberstamp nominees or whether we should insist that when we have questions, they are answered to our satisfaction.
    
We have been subject to accusations and allegations that would be funny if they were not so demeaning to those who state them and to those they are purporting to defend. Let me quote verbatim some of the remarks the other side has made in the course of debating this nomination.
    
We have heard it often said of late, but I believe Senator Lott was the first to say this last year:
    
They don't want Miguel Estrada because he's Hispanic.

It is so ludicrous that it is hard to imagine we have to respond to it, but to make sure the record is set straight, I will.
    
Under Chairman LEAHY's leadership in the last Congress, we considered every other Latino nominee who could be considered, all six of them: Christina Arguello from New Mexico, Judge Philip Martinez from Texas, Randy Crane from Texas, Judge Jose Martinez from Florida, Judge Alia Ludlum from Texas, and Jose Linares from New Jersey. Every one of them was picked by the President, every one of them was confirmed quickly, and every one of them is Hispanic. We moved them on the bench because no red flags were raised suggesting they were extremists and because they did nothing to undermine the Senate's role in the confirmation process.
    
A seventh Latino nominee, Judge Otero from California, was unanimously supported by the Judiciary Democrats just last week, myself included, and I have every reason to believe the entire Democratic caucus will support his nomination when the majority leader brings it to the floor as scheduled later this evening. So this has nothing to do with Mr. Estrada's race, his ethnicity, or his heritage.
    
The only ones around here who are claiming that this debate is about race, ethnicity, and heritage are my colleagues from across the aisle, and their position puts them in the ludicrous position of saying the Congressional Hispanic Caucus or the Puerto Rican Legal Defense Fund is anti-Hispanic because they oppose Mr. Estrada. As I said, it is ludicrous. It is demeaning. Let's debate this on the merits but not on anything else.
    
As I mentioned, Senate Democrats unanimously supported seven Latino nominees already, all candidates offered by the President; all, I presume, sharing a conservative legal philosophy. I do not know if they are Democrats or Republicans, but I doubt all seven were Democrats. So then a lot of people on this side of the aisle supported Republican Hispanics, conservative Hispanics. It seems only when one disagrees with my good friend from Utah and those on the other side of the aisle do, the names get hurled and there is no consistency, there is no measure of appropriateness. It is similar to using a sledgehammer, a bludgeon, to get the nominee through.
    
None of the seven who have been nominated by President Bush—I do not know if my colleagues know how many are Republican. I do not, but again probably most of them—have raised red flags that they will be activists on the bench. None raised serious concerns that they will try to make law instead of interpreting law.
    
So when a Republican Senator says if someone is a minority and a conservative, we are against them, that is not only ludicrous, it is wrong; it is dead wrong and it is disproven by the facts of what has happened in the Judiciary Committee and on the floor of this Senate repeatedly last year and even tonight. Those kinds of allegations do not do anything to heighten the quality of dialog and debate. I am saddened by it. It is not a high moment for the Senate, and it is not the way to win a nomination. I wish, probably hope against hope, that we would try to raise the level of this debate, because those kinds of comments debase us, they debase this process, and everyone knows they are false. They are a red herring.

Mr. SCHUMER. No wonder people are fed up with Washington. No wonder they do not want to pay attention to the work we are trying to do. Comments like that turn people off. It is a real disservice to the process, to the Senate, and to the country, and it ought to stop.

Mr. SCHUMER. I am not familiar with those comments. I will certainly read them, but I do not think one person on a commission—I do not know who she is. I do not know if she is a Republican appointee or a Democratic appointee or anything to that effect.

Mr. SCHUMER. But it does not gainsay the argument that we have repeatedly approved Hispanic nominees in this body, Hispanic nominees nominated by President Bush, Hispanic nominees who are Republican, and Hispanic nominees who are conservative.
    
I say this to my good friend from Utah: Of the 10 Hispanic appellate judges currently seated in the Federal courts, eight were appointed by President Clinton. Three other Hispanic nominees of President Clinton to the appellate courts were blocked by the other side a few years ago. I did not hear charges from Senators—I do not know what the outside world says, but I do not recall a single charge by a Senator saying that blocking those was anti-Hispanic. If somebody made those charges, they would be wrong.

Mr. SCHUMER. I am happy to read the letter. What I was saying was that of 10 Hispanic appellate judges currently seated in the Federal courts, eight were appointed by President Clinton. Three other Hispanic nominees of President Clinton to the appellate courts were blocked by my friends from the party on the other side, in addition to others for the district courts.
    
In fact, in contrast to President Bush's selection of only one Hispanic circuit court nominee in more than 2 years, with the second being nominated only last week, three of President Clinton's first 14 judicial nominees were Hispanic. He nominated more than 30 Hispanics to the Federal courts.
    
I am not saying Clinton's superior record on appointing Hispanic judges makes anyone on the other side or President Bush anti-Hispanic. That claim would be ludicrous, the same as to say those of us who are opposing the nomination of Miguel Estrada are anti-Hispanic. I just want to go over what happened to some Hispanic nominees when the Republicans ran the Senate during President Clinton's tenure. The consideration of Judge Richard Paez was delayed for over 1,500 days. Thirty-nine Republicans voted against it, because of his liberalism and their allegations that he was a judicial activist. These allegations were centered around two sentences contained in a lecture he gave to an audience of law students. They ran Judge Paez up and down the ladder. They demanded he answer more questions and produce more documents.
    
Did my colleagues put Judge Paez through the ringer because they were anti-Hispanic? I ask that to my colleague from Utah. Did his friends, not him—I know he tried to get the nominee through. After 1,500 days, he succeeded. That is close to 4 years. I think it is a little more than 4 years, but some of his colleagues and my friends on that side of the aisle vehemently opposed Judge Paez. Some of the arguments they made were the Ninth Circuit is out of balance, has a very liberal representation, and it does not need another liberal judge. Those arguments can be weighed for whatever they are worth, and different people will think they are worth different things, but it clearly does not make our friends from the other side who held up that nomination anti-Hispanic.

Mr. SCHUMER. I say this to my friend from Utah. He said his colleagues on the other side thought Paez might be a judicial activist. They disagreed with some of the ways Judge Paez thought. Fair enough. I did not agree with them. Nobody called them anti-Hispanic. We have had charges on this floor that to oppose Mr. Estrada makes one Senator or another anti-Hispanic. That is my point. That is demeaning to this process, and it ought to stop. The Senators who are opposing Mr. Estrada are no more anti-Hispanic than those who opposed Mr. Paez.
    
By the way, there were 39 Republicans who voted against him. Are those 39 Republicans anti-Hispanic? We would laugh at that. If someone on this side of the aisle tried to raise that charge, there would be a fury over there. Correctly so.
    
If someone had never voted for a Hispanic nominee, if President Clinton had not nominated Hispanic nominees, then maybe there would be someone bringing up this argument. But the record is to the contrary. In terms of the criteria of Hispanic nominees to the bench, this side of the aisle has a far better record than the other side.
    
I think those comments are demeaning. Those comments are wrong. Some on the outside may make them. We cannot help that. This is a free country. God bless America. They should not be made on the floor of the Senate. I implore my colleagues to cease. They know it is wrong. It is not even an effective debating technique.
    
Let me go over a few other Latino nominees. There were two Latino circuit nominees, Rosemary Barkett and Sonia Sotomayor, who were also delayed. Judge Sotomayor, who was appointed to the district court by President George H.W. Bush, was targeted by some on the other side for delay or defeat on the grounds of ideology or philosophy. Were they anti-Hispanic when they opposed her? I doubt it. While she was eventually confirmed, 29 Republicans voted against her. Were they anti-Hispanic? I doubt it. Yet we hear from some who voted against Judge Sotomayor and against Judge Paez, from some of those who have held those nominees up, the charge here. It was wrong then. It is wrong now. It ought to stop.
    
Judge Barkett was targeted for delay and defeat on the claims about her judicial philosophy. Thirty-six Republicans voted against her confirmation. My good friend from Utah—again, a true good friend; that is not just rhetoric, a fine man—said this of Judge Barkett: I led the fight to oppose her confirmation because her judicial records indicated she would be an activist who would legislate from the bench.
    
I don't doubt for a minute my friend's sincerity. I don't doubt for a minute that Chairman Hatch opposed Judge Barkett because he disagreed with her ideology and thought she would be an activist on the bench. I don't doubt for a minute he does not have an anti-Hispanic bone or atom in his body.
    
However, I say to my colleague, the same is true, the mirror image is going on here. Some on this side disagree with Mr. Estrada's philosophy. There are some who believe he will be a judicial activist, although none of us know for sure because the record is so thin. So there is an additional argument about the record.
    
Just as we did not doubt the sincerity of our friends from across the aisle when they opposed Hispanic nominees who they thought would be activist judges—not my words; out of the mainstream, who would legislate from the bench—I hope they will not doubt ours.
    
When scores and scores of our colleagues delayed Judge Barkett and Judge Sotomayor, when scores of Republicans voted against them, was it about race? Was it about ethnicity? Was it about heritage? Of course not. They had concerns about what kind of jurists Judge Barkett and Judge Sotomayor would be. It was not because they are Hispanic.
    
By the way, that is, in my judgment, just what the Founding Fathers wanted. They wanted to debate the philosophy and views of potential nominees as well as their legal ability, their probity, and where they came from in terms of judicial philosophy. That is what they wanted.
    
But it seems there is a double standard in this Senate now. It is OK to say Hispanics on the left are not qualified because of ideology, but it is not OK to say Hispanics on the right are not qualified because of ideology. That is patently unfair. That is wrong. Again, it demeans this great Senate. It is a sad day for the Senate when that happens. It ought to stop.
    
Enrique Moreno, Christine Arguello, and Jorge Rangel were all nominated to the circuit courts by President Clinton and were never afforded a hearing or vote in the Judiciary Committee when Republicans controlled. In addition, Hispanic district court nominees such as Ricardo Morado and Hilda Tagle of Texas were also blocked. Mr. Moreno and Mr. Rangel were blocked by blue slips. Senator Hatch, my friend and colleague, exercised his legitimate power as chairman of the Judiciary Committee to honor the blue slips from a Texas Senator or Texas Senators. Of course, now that we have someone else appointing the judges, Senator Hatch is changing the blue slip policies. But that is not the point. The point is, when a Texas Senator is blocked, Mr. Moreno and Mr. Rangel and the Republican leadership allowed these well-qualified, widely respected, moderate Hispanic nominations, approved by the bar association, just as Mr. Estrada was, to die on the vine.
    
I don't recall any claims coming from Senators on this side of the aisle that they they were anti-Hispanic. Again, to bring charges from outside this body, whether it be someone on the civil rights commission or someone in one of what my friend from Utah calls the "left-wing Hispanic groups"—all the groups he disagrees with are left-wing Hispanics and all the groups he agrees with are fine Hispanic groups. But the point being we should not bring these issues up among ourselves because it demeans this body.
    
When these nominees were blocked, I assume my colleagues had their reasons. Maybe they were negotiating something. Maybe they had concerns about how the fine men would perform on the bench. But I assume those concerns had nothing to do with their being Hispanics. So why is it when they use procedural powers to block a nominee it is OK, but when we want a nominee to answer questions, disclose written materials and show he is not out of the mainstream, that he is not extreme, we get called vituperative names?
    
It sounds like a bad joke. I feel as if I traveled through the looking glass. We have a candidate whose picture is permanently on the floor but whose answers are permanently absent, who will not tell us what he really thinks. This is not the way the world really works. The Senate, if we do not watch it, could turn into a nonsensical California Wonderland.
    
Last week my good friend from Utah, who is doing a fine job defending something he believes in deeply here this afternoon and throughout this week and last weekend, said: I have never seen any Hispanic nominee whose nomination has so resonated with the Latino community except for the partisans, the partisan Democrats.

That is just not the case. The fact is the opposite. No Hispanic nominee has ever engendered such opposition. Many mainstream Latino leaders and organizations have come to the conclusion that Mr. Estrada should not be confirmed. The nomination is not resonating with them. The nomination is not resonating with the millions of Hispanic Americans represented by the Puerto Rican Legal Defense and Education Fund, the Mexican American Legal Defense Fund, La Raza, and most of all the Congressional Hispanic Caucus.
    
I have heard that there are some groups of Hispanic lawyers who support Mr. Estrada or Hispanic businesspeople. Good for them. They are participating in the American process. But in my State, Congressman SERRANO and Congressman VELáZQUEZ represent not only Hispanic lawyers and Hispanic businesspeople, but the whole Hispanic community. They are the two highest elected Latino officials we have. They would seem to me to speak better than any group, left, right, or center, for or against Mr. Estrada—at least talking about Hispanics in New York. They are against him.
    
So this battle of the organizations is a little silly. But it seems to me that by the very precepts of our democracy, those who have been elected to office are the ones who are probably the most representative, unless there is something so flawed in our democracy that it doesn't work. They seem to be overwhelmingly—not exclusively, but overwhelmingly against Mr. Estrada.
    
I have sat and talked to the members of the Hispanic Caucus. It is not simply a political issue to them. They feel it passionately. They believe deeply that the views that best represent those of the Hispanic people are not the views of Mr. Estrada.
    
These are the very organizations, by the way, some of the organizations I mentioned and some of the individuals I mentioned, who have worked vigilantly for years to put more Hispanics on the bench. Not so many of the others, who are claiming someone is not truly representing the Hispanic community. But these are the people who have done it. Do we think they have taken this position blithely, when they take such pride and have spent so much of their time trying to elevate Hispanics in the courts? Of course not. They have serious concerns, concerns about what kind of judge Mr. Estrada would be, legitimate concerns about what Mr. Estrada will do if given a lifetime appointment to the Nation's second highest court.
    
My friends across the aisle have accused my good friend and colleague—I know he is a friend and colleague of my friend from Utah—Senator Leahy, of "playing star marionette to these Hispanic groups."
    
That is an insult both to our colleague from Vermont and to these fine organizations. It is absurd, and it ought to stop. They may have a philosophy closer to that of the Senator from Vermont—or to mine, for that matter—but they clearly make up their own minds. It is one of the meanest things I have heard in 30 years in government. Again, it is demeaning. It is demeaning to this body; it is demeaning to the groups; it is demeaning to Senator Leahy. It ought to stop.
    
I have not heard a single word on this floor denigrating the groups who have supported Mr. Estrada. I don't know who the Hispanic Chamber of Commerce is, but I am sure they are fine people. I don't know who the Hispanic Lawyers Association is, but I am sure they are fine people. I am not going to denounce them. I am not going to characterize them. So why is it OK to characterize other Hispanic groups, with whom some on the other side disagree, in such derogatory ways? I just assume that the groups on one side, cited by one Senator, and the groups cited by another looked at the same nominee and came to a different conclusion; that is all.
    
Another thing our colleagues across the aisle said was that we are taking blindfolded swings at Mr. Estrada. Maybe there is a little Freud in there. To the extent that we are blindfolded, it is only because Mr. Estrada will not answer questions, won't give us the memos he wrote, and we are being kept in the dark about what he believes.
    
I suggest we get this debate out of the low levels where it has been, at least at certain points in time, and back on the merits. Let's stop this foolishness. Let's start talking about whether the Senate should confirm a man about whom so many red flags have been raised, a man who I believe is thwarting the Senate's role in the constitutional process by refusing to answer questions, a man who is asking us to hand to him a lifetime appointment to this Nation's second most vital court without giving us even the slightest inkling as to what kind of judge he would be in terms of how he would rule, in terms of his philosophy.
    
In the interest of moving the debate along, let me move to the attacks that some have made on our insisting that Mr. Estrada answer the questions we have asked him. Another place where we venture into Alice in Wonderland is this idea, How dare we ask Mr. Estrada to answer questions?
    
Go back and look. The very ones of our colleagues who are condemning questions being asked of Mr. Estrada asked the most questions of previous nominees. God bless them for it. That is their right. It helped the debate. It helped the process.
    
Our friends have suggested that the questions put to Mr. Estrada, the questions he refused to answer, were unreasonable. I say to my friends on the other side that they ought to look more closely at the questions we asked, and then look in the mirror—or perhaps more correctly, look in the record—because virtually every question we asked Mr. Estrada was asked by Republican Senators of President Clinton's judicial nominees. The only difference is that when the Republicans asked questions, President Clinton's nominees gave answers.
    
It is also worth noting that we put the same questions to other nominees of President Bush. The only difference here, too, is that they answered. But don't take my word for it; let's go to the record.
Mr. Estrada declined, claiming there is no judge whatsoever, not one single judge in the entire history of jurisprudence, whom he would "seek to emulate on the bench, whether in terms of judicial philosophy or otherwise." He named a couple of judges he was friendly with, a couple of judges he had personal respect for, but not one judge living or dead whom he would emulate in terms of judicial philosophy or otherwise. That is a pretty extraordinary answer from a man who wants a lifetime appointment on the Nation's second highest court. He is basically saying: "Trust me, I am very smart"—which he is—"so I'll be a good judge."
    
Forgive us if we want a little more proof. If a party in court before Mr. Estrada tried to make a case with such a paucity of evidence, I can't imagine that Mr. Estrada, then a judge, would rule in his favor.
    
Maybe this is an unfair question. Maybe, as my friends from the other side are suggesting, this question should not have to be answered by someone seeking such a powerful position. Maybe it is wrong for us to propound such questions to judicial nominees.
    
Perhaps we should call up the Department of Justice and ask the Attorney General what he thinks about Senator Durbin's question, because when Attorney General Ashcroft was a Senator, he agreed that Senator Durbin's question was a fair one. How do I know? Because Senator Ashcroft asked the very same question himself. And guess what. When Senator Ashcroft asked it, the question was answered.
I am sure my friends on the other side will say, Well, you know, Senator Ashcroft didn't specifically ask about judicial philosophy. But remember, Mr. Estrada's answer to Senator Durbin's question went way beyond judicial philosophy. Mr. Estrada said he could not name one single solitary judge he would want to emulate, in terms of judicial philosophy "or otherwise."

Regardless, we don't have to get into that argument. Let us look at what happened when the same question was put to another of President Clinton's nominees, Inge Prytz Johnson. Guess what. She answered.
    
Senator Ashcroft's question was: "Which Supreme Court Justice, past or present, do you most admire and why?
    
Judge Johnson named Justice Potter Stewart and explained why she admired him.
    
Senator Ashcroft's followup question was: "What Judge or Justice has most influenced your thinking concerning the constitutional separation of powers?"
    
Now we are getting right into judicial philosophy.
    
Now this is, for all intents and purposes, a question addressing the nominee's judicial philosophy on separation of powers issues.

I asked Mr. Estrada to name a Supreme Court case he disagreed with. I first asked him to name a case from the last 40 years of Supreme Court history. Then I expanded the question to cover all of Supreme Court jurisprudence. He refused to answer, claiming he could not name a single such case.
    
My friends on the other side suggest there is something unfair about this question. Let me tell you, as I go through the records of questions they put to President Clinton's nominees, this question pales in comparison.
    
Time and again, Republican Senators asked Clinton nominees to take positions on issues that would come before them if confirmed as Federal judges. If you want us to detail those instances for you, we are happy to do so. Just let us know and we will put together some charts demonstrating the double standard of these attacks on us. I think we all know what that research would show. I think we all know how unfair and inconsistent the other side is being. I don't want to go back a couple of years to the questions they asked, but we can do it if we have to.
    
By the standards our colleagues set and by any objective measure, our questions were well within bounds. And, frankly, these weren't even hardball questions. There was no surprise in these questions—they had all been asked before in one form or another. Mr. Estrada simply just did not want to answer.
    
My colleagues have cited Canon 5 of the Code of Judicial Conduct of the American Bar Association as the defense for Mr. Estrada's refusing to answer questions.
    
As Chairman HATCH has said, Canon 5 that expressly forbids nominees to judicial duty from making "pledges or promises of conduct in office [or] statements that commit or appear to commit the nominee with respect to cases, controversies, or issues that are likely to come before the courts."
    
Let us be clear. My questions were about already decided Supreme Court cases, cases that by definition will never come before Mr. Estrada; cases that he can never reconsider; and cases that would not even arguably justify invoking Canon 5 as a basis for refusing to answer.
    
Why are these questions important? Because the answers will give us insight into how Mr. Estrada approaches the law. They will help tell us what kind of judge he will be. Is he likely to be a Marshall or a Scalia? A Brennan or a Rehnquist? Probably not. There is quite a bit of difference among those judges. These are legitimate questions that don't even begin to lead to a violation of Canon 5.
    
But don't take my word for it. Take John Ashcroft's.
    
I don't mean to limit my laudatory comments to Senator Ashcroft, but he asked such good questions when he was here that I can't help citing him favorably. Mr. Attorney General, if you are watching this debate, I hope that by complimenting your fine work on this issue I'm not hurting your reputation with certain communities.
Judge Berzon answered. She waited a few years for the Senate to confirm her, but she answered. She said Lochner was an example of judicial activism. She said Roe was not. And she named three other Supreme Court cases that she believed were judicial activism.
    
So there is just no question that our questions were reasonable.
    
So there was no question that, at least by John Ashcroft's standard, our questions were reasonable.
    
Once again, why isn't it that what is good for the goose has to be good for the gander? Why does it seem there is a double standard; that it is OK when there were Democratic nominees to ask them question after question after question about their philosophy, but when Mr. Estrada comes before us we don't need to know anything more? All he has to do is say, I will follow the law.
    
Suggesting that there's something wrong with our asking the exact same questions our friends asked is nothing short of absurd.
    
Let me note as well, that the very same question I asked of Mr. Estrada, I asked of the five District Court nominees whose hearings were held the same day as Mr. Estrada's. They all answered. I asked the same question of Jeffrey Sutton, a circuit court nominee whose hearing we held a couple of weeks ago. He answered too.
    
Judge Linda Reade, a judge who I voted for in committee and on the Floor—one of the 96 Bush judicial nominees I have supported so far—and whom we unanimously confirmed to a District Court judgeship in Iowa, gave some particularly interesting answers.
    
Judge Reade was crucial of two Supreme Court cases that expanded police powers and diminished privacy rights under the fourth amendment. She answered interesting questions. It was a great moment for the committee.
    
One of the cases, United States v. Rabinowitz, held that police had the power to search someone's office when he was arrested with an arrest warrant but without a search warrant.
    
The other case was Harris v. United States where the court held, again, that a search of an arrestee's entire four-bedroom apartment was constitutional despite the fact that the police did not have a search warrant.
    
Her concerns about these cases reflect a heightened sensitivity to privacy rights protected by the fourth amendment. I don't want judges who read the fourth amendment so expansively that the police are handcuffed and unable to do their jobs. I want judges who will balance privacy rights with law enforcement interests.
    
I tend to be more conservative on criminal justice issues. I tend to side more with law and order than with the liberals out there. So I may not agree 100 percent with Judge Reade's answers. But her answers are fair and reasonable, and it allowed those of us on the committee to see what she was talking about.
    
Her answers suggest to me that Judge Reade will be attuned to American's privacy rights. I appreciate her candor, I appreciate her forthrightness, and I appreciate her straightforwardness. She is not hiding a thing. She is telling us what she thinks.

    
And there is obviously not a single Senator in this body who thinks Judge Reade's answers disqualify her for a Federal judgeship. Not a single one of us objected to her nomination or voted against her. The same is true of the four other nominees we asked questions the day of Mr. Estrada's hearing.
    
So this idea that the canons of ethics will be violated by asking questions about judicial philosophy is contradicted, is gainsaid, by the very fact that all of us voted for somebody who answered questions such as that. I do not think we would vote for someone who we thought repeatedly violated the canons of ethics.
    
So we want answers, we want forthright answers; we do not want the ball hidden. And then if judges appear to be somewhere within the mainstream—even though we may not agree with them on just about every issue—we will confirm them. That is what we did with these four nominees. We did it quickly. I voted for every one of them.
    
If the questions had been unreasonable, my colleagues on the other side, I presume, would not have asked them of Democratic nominees. But, as we have seen a little glimpse, the very questions we asked Mr. Estrada, Senators on the other side asked Democratic nominees, and there was no outcry or objection.
    
Just recently, I asked this question of a potential nominee in New York whom the President asked me to consider. I have not taken a position on her yet. She has not even been nominated. But let me tell you how much she impressed me with her answers. She named two cases, both of recent vintage.
    
The first case came from just last year, striking down the Child Pornography Prevention Act. In that case, a 6-to-3 Supreme Court said the first amendment protects purveyors of child pornography when they are using images of virtual children instead of actual children. I think the Court got the answer totally wrong. We are hopefully going to remedy that problem caused by the Court with legislation I am cosponsoring with Senators HATCH and LEAHY, among others. But I was pleased to hear that the nominee agreed that the Court got the ruling wrong.
    
The other case was another decision from last year where the Court held that police were allowed to ask bus passengers permission to search their bags without explaining that passengers have the right to say no.
    
Just as I was with Judge Reade's answers, I was conflicted about this one. I believe in privacy rights, but I also believe, in this post-9/11 world, police have to have some legitimate tools at their disposal to fight both crime and terrorism. So while I may not agree or disagree at this point with the answer, I was pleased to hear that if this nominee becomes a judge, this nominee will be sensitive to citizens' privacy rights.
    
I do not doubt that Judge Reade and the other nominees who have named Supreme Court cases with which they disagree will faithfully follow the law despite their disagreements. These are mainstream judges who have conservative but not extreme ideologies. I respect them. I have voted, as have almost all of my colleagues, for 99 percent—or some number like that—of them so far. And I will continue to vote for them as long as I believe they will not be activists or extremists on the bench.
    
We are simply trying to hold Mr. Estrada to the same set of standards that other nominees are meeting. We are asking even less of him than Republicans asked of President Clinton's nominees. It is obvious these are fair, reasonable, and legitimate questions. It is obvious there is nothing wrong, constitutionally or by the canons of ethics or anything else, with answering them because hundreds of nominees have and they have been approved by this body. It is also obvious that Mr. Estrada is stonewalling us by refusing to tell us what he thinks.
    
So these two areas that I have had a chance to discuss today—whether opposition to Mr. Estrada can legitimately be labeled anti-Hispanic in any way, and whether it is fair to answer questions—again, are both pervaded by a double standard. It seems what folks on the other side of the aisle were saying 2 years ago they are not saying today.
    
I hope we will be somewhat consistent. I hope we will be somewhat fair. The nomination of judges, and then the advice and consent the Senate gives them, is a sacred process, one that the Founding Fathers debated long and hard. To ridicule the process by saying there are not legitimate questions to be asked and answered, to ridicule the process by saying that when those questions are not answered someone is opposing a nominee because of his background, particularly when so many of those opposing this nominee have had great records in terms of bringing Hispanics to the bench—far better than President Bush or those on the other side of the aisle—is unfair, is unwise, and demeans this body. I hope it will end.
    
Mr. President, I yield the floor.