Senator Schumer's Floor Discussion on Miguel Estrada (Continued)

Mr. SCHUMER. Madam President, let me add my accolades to our colleague and leader of the Judiciary Committee, Senator Leahy, who has done a terrific job. I thank Senator Leahy as well as Senator Daschle and Senator Reid for the remarkable unity in the Democratic caucus when, frankly, some of us felt we had to do something here and didn't really think it would come to fruition.
    
Let me say the vote today boils down to one issue more than any other: Should the Senate have any role in the selection of judges to the Federal bench? It is that simple. It boils down to the simple fact that there has been an attempt here to obliterate the advise and consent process which the Founding Fathers regarded as one of the most important in the Constitution.
    
This is not an argument about one man. This is not an argument about any particular issue. This is not even an argument about something I believe strongly, whether somebody's views should be taken into account before that person is appointed as a Federal judge.
    
What has happened in the last several months has made a mockery of the advise and consent process.

Mr. SCHUMER. I thank my colleague for asking the question. My view is yes. I don't want ideologues on the court, whether they be far right or far left. What ideologues tend to do is make law and not interpret the law. The bottom line is there are many people who know Mr. Estrada who say he is a mainstream conservative and he is not an ideologue who will try to bend the law to the direction of his beliefs; there are many others who say he is an ideologue who will bend the law to the direction of his beliefs.
    
Going back to my first point, we have no way of ascertaining that one way or the other because Mr. Estrada has refused to answer in any kind of elucidating and forthright way questions that were asked of him throughout 9 hours of hearings, which I chaired, and because the only other place we can find what his views are is in his work papers at the Solicitor General's Office, which are being withheld even though there is no privilege. And those papers have not been withheld by any other nominees who have sought to be justices and garner other positions in the Government.
    
Unless we wish to make the Senate simply a detective agency to find some useful indiscretion and eliminate a nomination or oppose a nomination, for that reason, then we should oppose Mr. Estrada.
    
I say to my colleagues that the position of being on the Court of Appeals in the DC Circuit is one of the most important positions in the Government. Many might argue that those judges have more power than individual Senators. Can you imagine if we ran for reelection and we said we refused to answer questions about our views? Can you imagine how the public would react? They would say, whatever your views are, you have an obligation to tell us if you want to achieve a high office.
    
If you read the papers of the Founding Fathers, the advise and consent process was the very way that views of nominees were to be ascertained. In fact, as Senator Kennedy elucidated in the Chamber the other day, for a long time the Constitutional Convention wanted the Senate to choose the judges but believed that the ability to choose would be too disparate, and instead they came to the decision that the President should choose them.
    
But nowhere is it believed that the Senate should be a rubberstamp. Nowhere is it believed that the Senate should simply be a detective agency to find out if someone did something wrong. Our job is to figure out what kind of judge Mr. Estrada would be. We know he is a very bright man. That has never been disputed. We know he has a story of advancement. That has not disputed. But far more important than either of those things, do we know what his views are on the first amendment or the commerce clause? Do we know how he would approach cases that affect the environment, or workers' rights to organize, where the District of Columbia Circuit Court of Appeals is paramount? We don't want him to tell us how he would rule on a specific case, but the American people are certainly entitled to the views of this man in terms of how he would be a judge.
    
Some on the other side say it is simply good enough for any nominee to say, I will follow the law. If that were the case, we wouldn't be here; we wouldn't need the advise and consent process; the debate in Constitution Hall about how to choose judges would have been totally overruled.
    
This is a historic moment in a very real sense. It is a moment when we are going to see if a third branch of Government—the one unelected branch of Government, which has awesome power—is going to be responsible to the people. To simply have Presidents choose judges is not what this country needs nor what the Founding Fathers intended, yet we are getting to that point right now.

    
I urge my colleagues. I want to join my plea with Senator Leahy's. We have tried on this side. I have tried to understand. The Presidents are going to get their way almost all of the time. I have voted for 100 of the 106 judges who came before us. I daresay their philosophical views about government and all of these issues are quite different from mine. But as long as they are not out of the mainstream, as long as they won't approach being judges from an ideological point of view where they are making law rather than interpreting law, they deserve to be on the bench, if they have the other qualifications. We have no way of knowing right now. The American people have no way of knowing what kind of judge Mr. Estrada will be in terms of his views.
    
For that reason, reluctantly, but firm in the conviction that we are right, we must oppose the nomination of Miguel Estrada, or at least oppose his moving forward until we get the kind of information that is necessary to determine what kind of judge he will be that is necessary in terms of the precepts of what the Founding Fathers outlined for this country.
    
I yield the floor.