Senator Schumer's Floor Discussion on Miguel Estrada

Mr. SCHUMER. Mr. President, I rise to speak on a few matters of importance to us related to the nomination of Miguel Estrada, which is what we are now focused on, as well as some of the issues we should be focused on which we are not doing because the majority leader has determined we will continue to debate Estrada.
    
Last week, something happened in the Judiciary Committee that more of our colleagues should know about because a lot of us find this very confounding.
    
First, I have tremendous respect for and, indeed, consider the senior Senator from Utah my friend. I know he cares deeply about the issues and about the Senate. What we are seeing in the Judiciary Committee is going to do some significant harm—I hope not irreparable harm—not only to the Judiciary Committee but to the whole body. Up until last week, when we were moving closer and closer and closer to the edge of violating the rules the Judiciary Committee has worked upon, there were a lot of traditions on our committee. It is an important committee, a committee steeped in great legal tradition. If you look at the pictures on the wall of the various chairs of the committee, it goes long and deep.

But we have seen changes, first, in my judgment, when three court of appeals nominees were brought to a hearing at the same time. A court of appeals is an extremely important court. Every judge appointed to that court has a lifetime appointment. So the last chance there is to vet who they are, what their views are, how they think, comes in the advise and consent process on the floor of the Senate and, in the first instance, in the Judiciary Committee.
    
Many of us protested to the chairman of the committee that to have three courts of appeals witnesses, none of whom was without controversy, come before us on a single day did not make much sense. He said, well, that is how he wanted to do it. Although in fairness to Chairman HATCH, he was apologetic and said he would not do it again. But when we asked that we change it prospectively because these are important positions and important nominees, he said, no, he wanted to go forward.
    
We went until 9 that night. I was there. Chairman HATCH was gracious. I had a previous engagement at 7:30 that I had to go to and came back. By 9:30, with the members of the committee who had stayed that long quite exhausted, we had only really finished asking questions of one nominee, Jeffrey Sutton, to the Sixth Circuit.
    
I asked Senator Hatch if we could bring the two other witnesses back. He said he didn't want to inconvenience them. With all due respect, I expressed my disagreement. To inconvenience a nominee for the court of appeals, whether it be the Sixth Circuit or the DC Circuit, Mr. Roberts and Judge Cook, to ask them to spend an extra day here in return for what is a lifetime appointment didn't seem to me to be too much.
    
If normal workers, people who apply for jobs, are asked to come back by their prospective employer for a second interview or because something happened and that employer couldn't see them that day, they would hardly say it would inconvenience them, if they wanted the job.
    
But we seem to be running on a different schedule. So two of the nominees never got questioned. I asked them some written questions. I much prefer to ask oral questions. Answers given before the committee in the give and take are much better.
    
For instance, some people asked why didn't I ask written questions of Miguel Estrada, because I questioned him for 90 minutes. His answers were so obtuse and unenlightening, simply saying he will follow the law, he can't answer that because he hasn't seen the briefs, asking any written questions would have made no sense, to get those same answers back.
    
In any case, we did that. And then, of course, there was the hearing for Miguel Estrada, and we have rehearsed and rehearsed that over and over and over again, where questions were simply not answered. To say he was before the committee for a lengthy number of hours, and he answered some 100, or 500, or however many questions, doesn't tell the story. We all know that, because the answers he gave were to the effect: I cannot answer that; without the briefs, I cannot answer that; because it might be in a pending case before me, I cannot answer that.
    
Those are not real answers. With all due respect, in this Senator's judgment, I have never seen such stonewalling when a nominee was faced with so many different questions. And we continue to debate the Estrada nomination on the floor, not because the minority wants to debate it—we are happy to move on—but because the majority has chosen to debate it by filibuster, which is not ours but, rather, theirs. I hear we are going to move to the Moscow Treaty this week—that being the choice of Majority Leader FRIST—which is proof that we don't have to stay and debate the issue of Miguel Estrada. The schedule is in the hands of Senator Frist.
    
What happened in the Judiciary Committee last Thursday was even more disappointing. We have had a rule that has existed in the Judiciary Committee for quite a long period of time. I am not sure of the number of years, but it is certainly over a decade. That rule is not something that is whimsy or simply tradition, such as the issue that we should never have three judges before us—I have just been informed that rule has been on the books since 1979. That is a written rule of the Judiciary Committee. It has been abided by by chairpeople, Democrats and Republicans, repeatedly throughout that period of time. I will repeat that this is not a tradition, it is not something that is sort of fuzzy. This is not even like blue slips. That is another place where the committee just changed. I didn't mention that, but I will take a minute to mention that.
    
We have always had a tradition of blue slips where, if a Senator from a home State objected certainly to a district court judge, that judge would not go forward. Many colleagues on the other side of the aisle have used the blue slip with success, from their point of view, repeatedly in the nineties, particularly when President Clinton was President, and when they controlled the Senate, or when they didn't control it. That is a tradition simply cast aside by the majority.
    
So we have the way we conduct hearings, blue slips, and everything dealing with judicial nominees.
    
As I said, we were getting closer and closer to the edge of no longer having comity on the committee, abiding by traditions. It almost seems as if it is, like "Alice in Wonderland," first the verdict, then the trial; the majority determined the result they wanted and changed the rules to fit the result: We want a lot of nominees put on the bench quickly. OK, we will stack them up in hearings and not give every Senator a chance to ask all the questions he or she wants. We have a nominee whose views, in all likelihood, were questioned and gone over thoroughly at the White House, but we don't want the public or the Senate to know, so we will instruct him not to answer questions in any dispositive or enlightening way. We have nominees we could never get through, in terms of comity—bipartisan comity—so we will get rid of the blue slip rule, or weaken it significantly.
    
As I said, all of those were traditions of the committee. I have been told over and over again that this body is very mindful of traditions, but they seem to be falling one by one—we have had more traditions falling in this month and a half that we have been under new leadership than in all the time I can remember being here. That is only 4 years.
    
But last Thursday, we had an unprecedented action. That action was that a rule of the committee—not a tradition, not something subject to anybody's interpretation—was just steamrolled over—ignored, forgotten, et cetera. That is one of the reasons we may need courts. That rule, which was written and ratified by the members of the Judiciary Committee when we organized this year, is a simple one.
That is crystal clear. What it says is that if you want to cut off debate in the Judiciary Committee, you need one member of the minority party to vote to cut off that debate. It is obvious why it was put in the rules: so there would be some form of comity, so that the majority party—even if they had 15 members of the Judiciary Committee and the minority party only had 5—could not shut off debate. It doesn't relate to the actual vote itself. It relates to how long one is entitled to debate.
    
Well, last Thursday, when the committee was expected to vote on the three nominees I mentioned earlier, two of whom were not questioned because they were all stacked up to be debated at one point—I believe it was Senator Leahy and Senator Kennedy who were there; I was not because I was in the Banking Committee hearing Chairman Greenspan. But Senator Leahy and Senator Kennedy invoked rule 4 and said, "We want to continue debate." At that point in time, Chairman HATCH called for a vote.

Mr. SCHUMER. I thank my colleague for asking the question which, as usual, from his lawyer-like mind, is able to pierce through the legalisms and reach the core of the debate that people can understand; it is an excellent question.
    
This is not simply a clash of egos, or even two lawyers arguing a point for the sake of it. The bottom line here is that this is what our country is all about in terms of protecting the rights of average people. The bottom line is that the Founding Fathers, and then Congresses from the very beginning—from 1789—understood the power a Federal judge has over an individual. The power of the judge is much closer to the power of a king—who also has a lifetime appointment—by definition, than is the power of a President or a Senator or a Congressman, because that judge is appointed for life and can just make up his or her mind and decide that should be done.
    
What we have had through the years of tradition is a very careful vetting of who should become a judge. The rules are simply a device to determine who those people are in terms of back-and-forth questioning, of hearings, of votes, et cetera.
    
The Founding Fathers certainly shied away from the idea of the President simply appointing judges. They knew the awesome power judges had, and they wanted to make sure there would be a thorough airing of who this person was before that person ascended to this lifetime appointment to a powerful position.
    
Every one of the rules the Senator mentioned goes to whether a person can organize in a union; whether a person can be discriminated against because of the color of his or her skin or their religion or their sex; whether a corporation can violate the Clean Water and Clean Air Acts and affect our lungs and affect our children's health; whether, for instance, an issue I know my friend from Illinois has been very much involved in, whether a meat packing company can decide how clean their plant ought to be, given there are Federal laws that govern them. The judges have all this kind of power.
    
The very reason we debate these issues and have these rules is we want to make sure the people who become judges will, indeed, follow the law and not simply get up there and say: I promise you I will follow the law. We have been there.

Mr. SCHUMER. I thank my colleague for the question. It is a very good question. Of course, it would involve us going into the heads of our colleagues, both on the other side of the aisle and the White House, in figuring this out. But I will tell my colleague what I think.
    
For some reason, the other side fears an open debate. For some reason, the White House and the other side do not want their nominees fully questioned. They have gone through every device and, as of last Thursday, even breaking the Senate rules. If the average citizen broke the rules, whether it be the driving rules, the parking rules, the rules of how you have to maintain your house or your sidewalk, there would be some recourse. I do not know what the recourse is here, but to abjectly break the rules and just say, I am breaking it, tough rocks, Jack, is so against the traditions we have had. For some reason, they do not want these nominees to be questioned. Why is that? We can only speculate, but I will tell my colleague what I think. I think some of these nominees' views are probably, and in some cases certainly, so far out of the mainstream that they do not want those views to become public because then it would either be, at minimum, an embarrassment for them, because this is not how President Bush was elected or most of the Senators were elected. We have mainstream conservatives and mainstream liberals, but very few Americans say: Have such a change in the way the courts and the Government functions that we should go back to the days of the 1930s or the 1890s.
    
There is a movement called the Federalist movement which basically has been devoted to cutting back dramatically on Federal power, giving that power to the States, giving that power to corporations, giving that power to others. I did not hear any mandate in the elections of 2000 or 2002 to go back to the 1930s, to go back to the 1890s, the way, say, I believe Justice Scalia, who has gone through the process, thinks. In fact, not only was there no mandate, there was no discussion. So when one asks oneself the very good question my friend from Illinois has asked me, which is, Why are they so afraid of questions of nominees, of debate, it is not certainly because they are afraid we are going to slow it down. We asked for 1 extra day of debate for Judge Cook and for Mr. Roberts. We did not get it. All we want from Miguel Estrada is some answers to questions and some papers, which they could have sent months ago. So this is, clearly, not just an issue of delay. If it were simply an issue of delay, we could work out an agreement, put in a time limit, and vote.
    
In my judgment, it is clear they do not want these questions answered. They do not even want them asked. That is why we are cutting off debate. Why? My guess—and it can only be a guess—is because the nominees to the judiciary, at least some of them, are so far over that if their real views were ascertained, the American people would be aghast.

Mr. SCHUMER. I do not believe so at all. I do believe—and this is another excellent question—a President should be given some degree of flexibility and latitude because the Constitution says the President should nominate judges. We advise and consent.
    
If choice were the issue, then I probably would have voted against—I think of the 106 nominees who have come before us, more or less, I have voted for 100. My guess is of those 100, given they were nominated by President Bush who made commitments to the pro-life groups, that they would agree with them and try to get judges to "think like Scalia and Thomas," that the overwhelming majority were pro-life. In fact, I know some of them were because I have read their decisions. I have read what they said in lower courts. I voted for them. I do not believe in a litmus test. I believe very few Members of this Chamber on either side of the aisle believe in a litmus test.
    
My guess—and I cannot speak for others—when on issue after issue a judge would have such extreme views that he would take the courts and the rulings so far out of the mainstream that Americans would be aghast, that ideological-type judges, whether on the far left or the far right, instead of doing what the Constitution says, interpret the law, rather make law because they feel so strongly that they have to pull the country in a direction way beyond, those are the few judges we—at least I—have objected to. Again, I have to use my judgment. Obviously, this is not an objective meter here, but that is what we have done.
    
I say to my colleague, the irony is this: Our good friend from Utah and many of the others on the other side of the aisle played the same watchdog role when President Clinton was President, and we have quote after quote from Senator Hatch, from Senator Sessions, from Senator Ashcroft, from the leaders of the Judiciary Committee back in the nineties, that they had to be on guard against what they called "activist judges."
    
To them, activist meant too far left. To me, activist means either too far left or too far right. An activist judge—I sort of sympathize with that comment. An activist judge means that because they feel strongly, instead of just interpreting the law and trying to figure out what Congress meant, they will impose their own views.

Mr. SCHUMER. Yes. The bottom line is the Court, despite the fact that Congress, on a bipartisan basis—by the way, supported by George H.W. Bush, the 41st President of the United States, who signed it into law—somehow comes up with an interpretation that parts of the law are beyond the Constitution and millions of disabled people are deprived of rights. That did not just happen for disabled people. In that case, which was the Garrett case, I believe my colleague is referring to, they said the States did not have to abide by this. Even though it was clear that the intent of Congress was that everyone had to abide by it, they said the States could discriminate against disabled people.
    
I know my colleague from Illinois was involved in a law that says someone cannot bring a gun into school. Again, somehow the Supreme Court comes to the determination that a person can, or that the law that we passed, which seemed to be a general mainstream consensus law—because some of these folks tend to be ideologues, they came up with some God-forsaken reason that that could not happen.
    
Another one on which I worked long and hard, along with our colleague from Delaware, Senator Biden, and our colleague from California, Senator Boxer—I know the Senator from Illinois was very supportive—was something called the Violence Against Women Act, which for the first time said that the Federal Government could be involved in helping women who were abused by their spouses. Before that, it was a sort of dirty little secret hidden under the rug. The law had amazing effect.
    
I know this one better than I know the Garrett case, but it is the same type of thing. It affects average people. For the first time, women were able to get hotlines, find out whom they could call when they were abused. Shelters sprung up. When a woman was beaten in the past, all too often there would be nowhere to go and she would have to go home to the same husband who beat her before.
    
On issue after issue, we helped women who were abused come out of hiding and seek help and become productive citizens again, having a huge effect not only on them but on their children. Studies show that if a child is abused, which this act would have affected, or the child's mom was abused by the husband, they are much more likely to be criminals. So it affected all of us. All of a sudden, the Supreme Court says that Congress's finding that this law affected commerce in the United States was undone and throws out part of the Violence Against Women Act.
    
So this is not an abstract argument, this is not a bunch of lawyers just arguing how many angels can fit on the head of a pin, this is not partisanship—to me, at least. I have devoted my life to government. I was elected when I was 23. I want to make the Government help people. I want people to believe Government is on their side. When nonelected judges come in and take years of work that Congress does—whether it affects disabled people, kids in school, the cleanliness of the water we drink, how a meatpacker has to obey certain laws, or the Violence Against Women Act—and throws it out on reasoning that 10 years before would have been regarded as crazy, the very least we owe our constituents, in my judgment, is the obligation—it is not simply a right, it is an obligation—to question nominees for the bench.

Mr. SCHUMER. If I might answer, I think my colleague has hit the nail on the head. This is so important. What we have come to is the fact that nominees are often told not to answer questions.
    
There is an article in the Legal Times where one of the leading conservative judges of the court of appeals instructed nominees not to answer questions. Why would someone say, do not answer questions; fudge on the questions? I think I know why, as we talked about before. Because if they gave their honest answers, they would become so controversial that many of them would not pass. But imagine the alternative: Not asking the question, or not getting the question answered, and then this nominee who has views way beyond the mainstream gets on the court and starts doing things. Do you know what would happen? Our constituents would come to us and say: Do something.
    
We would try, but it would be very difficult. We would probably have people on the other side saying: Well, I didn't know he thought like that. Yet when we have the opportunity to ask that nominee questions, to try and get some idea of how he thinks, we are denied the answers—either because we did not have time, as in the case of the three nominees, or in the case of not allowing discussion to go on in the Judiciary Committee, or because we had the time—with Miguel Estrada we had plenty of time, but the nominee refused to answer the questions, simply saying: I will follow the law.

We have been through that. It is legendary that when Clarence Thomas was up for the Supreme Court, people wanted to know his view on Roe v. Wade. For me, it is an important issue, but it is not a litmus test. Of the 100 people I voted for judge, most are against Roe v. Wade, but I don't have a litmus case.
    
But for a nominee to the Supreme Court to say he had never discussed it before while in law school—lawyers always discuss these cases—struck many as disingenuous. I was not in the Senate then, but people vowed they were not going to let that happen again; that was a mockery of the process. This is too solemn a process.
    
Before I yield to my friend from Utah, and I appreciate him yielding to me and yielding to all Members, and I will yield to him, speaking for myself, this transcends any one nominee. We are beginning to see a complete vitiation of the process whereby nominees will be nominated by the White House and rubberstamped by the Senate. In my judgment, nothing that we do here could do more damage to the fundamental underpinnings of our Republic than that.
    
I remind my colleagues, that is not what the Founding Fathers intended. The very first nomination to the Supreme Court was, I believe, Rutledge—I always forget if it was Randolph or Rutledge; my daughter was in the play "1776" and she played Rutledge, and I was constantly calling her Randolph, much to her chagrin. But in any case, Rutledge was defeated because the Senate had the temerity, I guess, in the opinion of my good friend from Utah, to ask Rutledge's judgment on something very controversial at the time, the Jay Treaty. The Jay Treaty was not what judges rule on, but the Founding Fathers—by the way, we just heard at our lunch that a large percentage of the first Senators were members of the Constitutional Conference, so they certainly knew what they wanted to do.
    
If they were questioning Rutledge on the Jay Treaty, then certainly asking Miguel Estrada how he feels about the commerce clause and the right to privacy and the 11th amendment and the first amendment and all of these things could hardly be out of bounds.
    
In fact, I would argue if the Founding Fathers were watching this debate, they would say: Yes, that is what we intended.
    
With that, I yield to my friend from Utah for a question only

Mr. SCHUMER. I thank the Senator for his question, and I think it is a good-faith statement to break this deadlock which I hope we will do because we have made the arguments over and over again.
    
Let me make an alternative suggestion and see what the Senator thinks and then I yield to him. Why don't we bring Miguel Estrada back for a second day of questioning? I find written questions never to bring out the same analysis, the same understanding of how a person thinks. That is why we do not conduct trials by written question. Miguel Estrada may say something, and I will want to immediately ask him, well, what about this, and to take another week and ask another question and another question and another question, I am sure within a short amount of time my colleagues on the other side of the aisle will be saying we are being dilatory.

If we could have another hearing of Miguel Estrada and if he could let us see the documents he authored as attorney general, I think it was my good friend's junior colleague from Utah who suggested we do that, and then we would set—I cannot speak for my whole caucus, but I will state what I would be for. I would be for setting a time certain when we vote for him, another day of hearings, ask Miguel Estrada to come back for a day.
    
It cannot be too much to ask when one is 42 years old and, may God grant him a long and healthy life.

Mr. SCHUMER. Let me try to answer my colleague. Again, I have the same caveat he does, even more so. I cannot speak for my Democrat colleagues. I am not even chairman of anything.
    
I would say this to my colleague and make a couple of points. The best evidence of how Miguel Estrada feels—given that he has not written articles, he has not been a judge where we can see his record—are these documents. We have debated this over and over again. There is no privilege. There is no anything else.
    
Senator Leahy and Senator Daschle, in a letter to my colleague—and I will be delighted to yield when I have finished my answer—have laid out the conditions by which we believe we would at least get some bit of evidence to see who Miguel Estrada really is. That is not in terms of his history, which has been repeated over and over again on the floor, and a wonderful history it is, but in terms of how he thinks and how he would think and how he would rule as a judge.
    
So the best evidence is not hearsay evidence; it is the written evidence. But let me just say in regard to the hearing—and here is my problem with the offer and why the written evidence is so important—let us say Miguel Estrada again refuses. He sits for 10 hours and refuses to answer—or answers, let's characterize it, in the same way.
    
I ask him—DIANNE FEINSTEIN asks him his feelings on Roe v. Wade, and he says I can't tell you that.
    
And Senator Durbin, for instance, asks him how he feels, widely or narrowly, the commerce clause should be interpreted, and he says: Because I might rule on a case about the commerce clause, I can't answer that.
    
By the way, I have checked with a whole bunch of legal ethicists, and the canons—you know, what the lawyers say you are allowed to do when you are nominated to be a judge—have nothing to do with broad questions like that. They deal with specific cases.
    
So let us say we get, as we would characterize it, or as I would, stone- walled, no answers on anything.
    
As my colleague well knows, when I asked Miguel Estrada about previous cases he liked or didn't like, he said: Well, I would have to read the briefs.
    
I have asked subsequent witnesses how they feel on cases and they have given answers to me. I had an interview with someone the President is thinking of nominating in my State. I asked her what is a case you like, what is a case you don't like? She was very forthcoming—you know, that had already been ruled on. So we would be in a complete——

Mr. SCHUMER. I would be happy to yield in a minute. We would be giving away the store without accomplishing our goal if we agreed, before we heard the answers, that we would agree to a date certain on the vote.
    
Perhaps we should have the hearing, see how he answers those questions, and then see where we are. If he is much more forthcoming, whatever his answers are, we might be able to make some progress. But if he gives the same exact answers as he gave 3 weeks ago, I for one could not agree to just having a vote on him unless we get the best evidence, the written evidence, which the administration will not give up. You are right. It is not Miguel Estrada, but it is the administration which has nominated him. So they are not sort of players from far away; they are part of this whole process. Other administrations, Democrat and Republican, have given up the same types of documents.
    
I don't want to get into a debate about that now, but that is our confirmed view.
    
So an alternative which I cannot even—I would have to talk to my colleagues about—would be: Let us have another day of hearings and then let us see what happens there and see where we go. But I think it would not make any sense, any sense whatsoever, to say today, or tomorrow, we will have a vote as long as he comes back. Because what if he does the same exact thing he did last time, which I know you find was fulsome and reliable—not reliable, but fulsome and elucidating testimony, but I found to be completely evasive.
    
I am happy to yield to my colleague for the purposes of another question only.

Mr. SCHUMER. I make a counterproposal to my colleague. Either we have him come back for 1 day, and the administration, his nominator, releases the papers as Senator Daschle and Senator Leahy have asked, and we agree to a vote ahead of time; the papers and a day of hearings—again, I can only speak for myself that that would satisfy me—or, in an effort to break the deadlock, we have the day of hearings without any commitment. Because, in all candor—you know, the Senator from Utah is a very fine lawyer and probably a lot better than I am. But I am not going to give away the store for a pig in a poke.
    
If we were to agree to a vote right now and Miguel Estrada were to come before us and just verbatim give the exact same answers he gave before, we would not have accomplished anything.
    
So I say to my colleague, in an effort to break the deadlock which we all want to break, believe me, let us have Mr. Estrada come back for a day of hearings, no preconditions. There will be lots more people paying attention to those hearings now. And let the American people make a judgment as to whether he is being forthcoming or not. Maybe his answers will change and they will say he is. Then we will decide where we go from there.
    
Because I will say this: This is one place I disagree with what my colleague said. To say, poor Mr. Estrada, he sat through 9 hours of hearings and to ask him to do it again is not fair seems to me to be—we are lawyers. Probably right now Mr. Estrada, who is earning a great salary because he is an excellent lawyer, sits through far more than 9 hours to try to win a single case. This, appointment to the second most important court in the land, is a lot more serious than any one single case Mr. Estrada is arguing.

Mr. SCHUMER. So I say to my colleague, to achieve a lifetime appointment on this very serious court, Mr. Estrada ought to be willing to sit—I am not saying we should do this—for a week or a week and a half. He is 42 years old. He is likely to be on the bench for 30 years, God willing he has good health. So that should not be the consideration.

Mr. SCHUMER. Answering my colleague's question, he is exactly right. I am not someone who has practiced law, like my colleague from Illinois and my colleague from Utah—I was elected to the assembly right after law school—but every good lawyer knows, even every good law student knows, that hearsay evidence is not as good as written evidence.
    
So when we hear all these people say—I have heard my good colleague from Utah say: This one and this one and this one say he is great, and this one and this one say he will follow the law. If my colleague truly believes that, then he has nothing to hide in terms of giving up these documents because they will show that Miguel Estrada will follow the law.
    
The problem is, we have just as many people who worked with him in the Solicitor General's Office who said: Oh, no, this guy is so far over that he writes his own laws, and he would write his own laws.

Mr. SCHUMER. He was his immediate superior. But the bottom line is this: My colleague from Utah immediately discounts Mr. Bender because he does not agree with his view on certain issues. OK. If, if, if, if Mr. Bender is wrong, the documents will show it. If Mr. Bender is right, the documents will show it.

Mr. SCHUMER. Not yet. I will in a minute.
    
But the bottom line is, as my colleague from Illinois stated, when somebody will not release documents, that you know can be released, then you say to yourself, What is in there?
    
Again, we are not just dealing with one case. We are not dealing with just one situation. We are dealing with a lifetime appointment to the second most important court in the land.
    
Why won't Mr. Estrada or the administration—which is his sponsor, his mentor in this particular situation—why won't he give up these documents?
    
I will tell you what most people think when they hear about it. And I have talked to my constituents, the few who ask me about this. They say he is hiding something. Do I know he is hiding something? Absolutely not. I have not seen the documents. But I tell you one thing: The great lengths that the administration and my colleagues on the other side have gone to not give up these documents makes one suspect there is something there they do not want people to see.
    
So the documents are crucial. And I, for one, believe we cannot agree to a date certain to vote until those documents are given up or unless Mr. Estrada somehow answers the questions in a truly dispositive way.
    
By the way, I say to my colleague, he said everyone else answered questions the same way. Absolutely not. And we have shown, in case after case, in nominee after nominee—the very nominee after Mr. Estrada, when I asked him the same exact question, was far more forthcoming than saying, "I can't," or "I will follow the law."
    
So the bottom line is, I would repeat my tentative offer—because I would have to check with my colleagues—let's have a day of hearings of Mr. Estrada and see where that leaves us, see if he gives the same answers. And let everyone see him answer the questions the way we saw him. And let's see if they think he is being forthcoming. And let's see if they think—when he is asked crucial questions that will affect people's live—he gives answers that satisfy people that he be appointed to the second most powerful court in the land. That is a way to resolve this.
    
Shakespeare once said: Me thinks the lady doth protest too much. There has been so much protestation about figuring out Miguel Estrada's record—not his legal qualities, not his story of being the son of an immigrant coming to America when he was 17, not speaking English. That is all great. He deserves a pat on the back for that. But that alone, in my judgment, does not entitle him to appointment to the second highest court in the land with a lifetime appointment.
    
I will be happy to yield to my colleague in 1 minute. But, again, it is certainly worth, with all due respect, the chairman's time, and all of our time, to hear him again. And maybe he will be somewhat more forthcoming. And then maybe we can come up with a compromise.

Mr. SCHUMER. The Senator is right on the money. The bottom line is, the Founding Fathers wanted the Senate to be actively involved in the process. It is my understanding, as I read the Federalist papers and the deliberations of the Founding Fathers, for a good period of time they were so afraid of the President, so much like a king, having too much power and knowing that judges would have lifetime appointments and have absolute power, at least on the cases they rendered, that for a long period of time they wanted the Senate to appoint the judges.

Mr. SCHUMER. Without the President involved, exactly. I can't remember if it was Madison or somebody else, but they argued it would be too diffuse, that the buck will have to stop somewhere, so they were going to have the President nominate. But to keep the President's power in check, the very thing they intended—my good friend from Massachusetts is exactly on the money—was that the Senate play an active role.
    
Let me repeat, many of the very first Senators who debated whether the first nominee, Mr. Rutledge, should become a judge on the Supreme Court were members of the Constitutional Convention. We heard today that of the first eight who showed up, six were members of the Constitutional Convention. I don't know how many out of the original 22 because I think there were just 11 States that had ratified the Constitution then. And guess what debate they had in rejecting Mr. Rutledge? They debated his views on the Jay treaty, which was a treaty involving France and England and all sorts of foreign entanglements, as they used to refer to it in those days.
    
Let me say that if the Jay Treaty was legitimate grounds to determine whether the Senate should consent, then certainly someone's views on the commerce clause and the first amendment and the second amendment and the fourth amendment and the 11th amendment and the right to privacy and the right to free speech should be.

Let's just get some corroboration for my colleague's excellent question. Here is what our good friend from Utah said when the shoe was on the other foot, when President Clinton was nominating people, and many of our colleagues on the other side were worried they would be too activist, which meant too many people who would let their own liberal views trump accurate interpretation of the law. I have great respect for the Senator from Utah. He knows this stuff inside out.
Well, I hope the Senator who had no problem then when Senator Sessions and Senator Ashcroft and other Senators on the Judiciary Committee wanted to ask a whole lot of questions—and believe me they did, of the people they were worried about, the Paezes and the Bersons, not to mention them, but all the nominees who never got hearings. Great specificity? Nine hours of hearings for the second most important job on the judicial side of the Government? Nine hours, when the answers, when talking about his history, Miguel Estrada was specific. It is not a character trait. It is only when he was asked his views on matters of great judicial importance, this is with great specificity, to simply say, on question after question: I will follow the law, is that answering questions with great specificity?

Mr. SCHUMER. I thank the Senator for his question. He is exactly right once again in terms of his question. No one said: How will you rule on this case that is now in the lower courts in DC. No one said, there is a case in Texas about a meat packing company that refuses to go along with what the FDA wants them to or the Department of Agriculture wants them to. No one asked even close to that degree of specificity.
    
When one asks, what is your view on the commerce clause and how expansively or narrowly it should be interpreted, what is your view on the first amendment—I asked him, for instance, how it would affect his view on campaign finance spending. These are not questions of specific cases. In fact, the Senator was off the floor when I mentioned that I have made inquiries of some of the legal ethicists in our country who make a living by interpreting the canons of the ABA, what a lawyer can and cannot do. Not one of them thought any of the questions even came close in terms of the level of specificity.
    
One might think that was just a ruse, that that was a way to avoid giving one's opinions. And when one sees the article that was in the Legal Times in 1986, where it was reported that at a Federalist society meeting, Judge Silberman, already a member of the DC Court of Appeals, suggested to prospective nominees that Ronald Reagan might nominate, don't answer the questions, that was the beginning. That was the seed we are now seeing bear its evil fruit, which is to stonewall. And basically the Senator was exactly right in his previous question, at least in my opinion, going back to the view that the President should appoint.
    

Do you know what these hearings would be? They would be hearings for show.

Mr. SCHUMER. I thank my colleague. Again, I completely agree with him on every one of the questions he has asked.
That statement in that article makes a mockery, as my good friend from Massachusetts has stated in his question, of the U.S. Constitution. "Keep your mouth shut." One has to ask: Why should you keep your mouth shut? It is not because there is anything unethical you did. I don't think Miguel Estrada has done anything unethical. It is not because you are ashamed of your history or of something that happened in your past. Why are these nominees being told to keep their mouth shut, if this article is true?
    
We all know why. Because the people who are advising them are afraid if they gave their whole views, they would be rejected not only by the Senate but by the American people. And then there would have to be something different. The Senator is exactly right. We are on the road to mutilating our Constitution. I believe in this document. The older I get, the more in awe I am of the Constitution. The Founding Fathers called this country "God's noble experiment." I believe that.
    
America took my family as refugees from Europe a hundred years ago—a little more than that. They were discriminated against; they could not have any kind of job; but they were given a chance. My father never graduated from college and his son is a Senator. This is an amazing place. It is not just in the way my teenage children would say it, but in the biblical sense, an awesome place, where the angels tremble before God in awe.

    
Part of that awe that we so cherish is the fact that we try to fulfill what the Founding Fathers wanted and wished. For an immediate political purpose, to put before the courts people who might be out of the mainstream, to make a mockery of the process by having three controversial court of appeals nominees appear on the same day so that two could not be questioned, to change by fiat the blue slip rule, which had been in existence for quite a while, and not debate and vote on what should happen on the blue slip rule—but to just change it—to then take a rule that had been in the Judiciary Committee since the Senator was on the Judiciary Committee before in 1979——

Mr. SCHUMER. The rule was even before he was chairman. It said you could debate an issue and not shut off debate, unless one member of the minority side—by the way, it wasn't written for a 10-to-9 minority; it could have been written for a 19-to-1 minority. On the Judiciary Committee some comity would have to reign. To take all these, and then this hearing, this nomination, where Miguel Estrada, being the good student he is, basically kept his mouth shut, I don't care how many thick books they put on the table. Read the answers, I say to my friends in America. Compare them to the answers of other judges, and then look at the fact that the only records we have of Miguel Estrada, his work as an Assistant Solicitor General, where we could determine how he thinks, other than by what he said at the hearing, where he didn't answer dispositively on anything in terms of his views—and the administration all of a sudden says we are not giving up such documents—it makes you scratch your head and wonder.
    
So I say to my colleague—and I will relinquish the floor in a minute—to me, this is not a fight over Miguel Estrada or Mr. Jeffrey Sutton or Judge Cook or John Roberts or Mr. Bybee or Mr. Tymkovich or any of the others; this is a fight for the sacredness of our Constitution. This is not the first time people who are a lot smarter than I am have tried to figure out ways around the Constitution and just say they are invoking the Constitution. That has happened repeatedly throughout our history.
    
But I believe, based on the patriotism that burns within me, based on my belief that this America still is "God's noble experiment," it is our job to try to keep the flame of that Constitution burning brightly. Part of that flame is to have a full vetting of nominees for the one nonelected part of the Government, the article III part of the Government; and to rush nominees through and say they don't have any more time for a 40-year lifetime appointment, to say that they can answer every question by basically obfuscating, I believe in my heart of hearts is not what Madison or Hamilton or Jay or Washington or any of the Founders intended.
    
I yield for a final question to my colleague from Massachusetts.

Mr. SCHUMER. I thank my colleague. Again—and I am going to yield the floor; we have had it a long time—that sums it up: The central role is the Senate. Can the Senate engage in a central role, not the President—and we hear all the people who are criticizing what we are doing, saying the President should be able to choose. Those very same people want to be strict constructionists.
    
My colleague from Massachusetts, in outlining what happened at the Constitutional Convention, shows who are the real strict constructionists in this Senate today. It is those of us who are trying to make sure the Senate has some real say in who the judges are—not a hearing at nine at night, not failure to answer questions, not somebody who will not give up their whole record. This is a job for which we would have lines from here to Baltimore if we offered it to every lawyer in America. How many of them would say: I won't give up my records, or I won't come and answer your questions. This is a standard that perverts the views of the Founding Fathers.
    
Again, I say to the American people, why is it Miguel Estrada and those supporting him are so afraid that we learn of his views? If they are mainstream, if they are moderate, if they are not way off the deep end, would not release of documents, would not his answering questions without evasion vindicate him? But instead, we have had a 3-, 4-, 5-week battle to get simple answers out of a man who seeks to be appointed to the second most powerful court in the land that will affect every one of the 280 million Americans who are living today, their lives and the lives of their children and the lives of their grandchildren. My colleague is exactly right.

Mr. SCHUMER. I thank my colleague for that question. First, I say to him, certainly, and let the American people who are watching today and everybody else understand the reason we have been on the issue of Miguel Estrada is not the choice of the Senator from Massachusetts, the Senator from New York, or our Democratic leader. It is the choice of the Republican side. It is the choice of the Senator from Tennessee.
    
Any moment—we do not control the floor; we are in the minority—any moment our friend from Tennessee, the majority leader, should say, Let's start debating how we are going to start getting jobs for the American people, more than 2 million of whom have lost jobs, any time the majority leader from Tennessee should say, let's debate prescription drugs, we would be off this issue of Miguel Estrada and debating those issues. I say to my colleague, as long as our colleagues insist on debating Miguel Estrada, I for one, and I speak, I think, for many of us, will not let the Constitution be rolled over, will not allow the very discussion that the good Senator from Massachusetts outlined, where it is clear the Senate should have more power than the President in appointing judges, be made a laughingstock. This document, the Constitution, is far too sacred.
    
It is my preference, to be honest, that the majority leader, the Republican leader from Tennessee say: Let's start debating other issues. It is his choice. But as long as he does not, I will be here at 10 of 4 in the afternoon or 10 of 4 in the middle of the night to defend this Constitution and prevent it from becoming a laughingstock because of some temporary whim of a small number of people in this country.
    
I yield the floor.