Continuing Floor Discussion on Miguel Estrada by Senator Charles Schumer

Mr. SCHUMER. Mr. President, I am so glad to see so many of my colleagues in the Chamber today, although I wish they were here to debate the issues the American people are asking us about. What is happening with the impending war in Iraq? How will we pay for it? What is happening with stimulating the economy? What are we going to do to have average working men and women gain jobs? We have lost 2 million jobs.
    
Let the record show the reason we are not talking about those issues and we are continuing to talk about Mr. Estrada is that is what the Republican majority wants to do.
    
Mr. Estrada has a job. I think he probably gets paid a very nice salary, and he deserves it. But what about the 2 million Americans who do not have jobs, who have lost jobs since President Bush became President? Why can't we be debating that issue? I urge my colleagues to start talking about that and how we will stimulate the economy; and to start talking about how we will gain more allies in our struggle with Iraq; and to start talking about how we will pay for postwar Iraq.
    
It is at the insistence of my colleagues that we continue to debate this issue, although we have reached an impasse. We are not going to yield on something we think is a constitutional principle. We can sit here and debate and debate and debate, but you will not change anyone's voting. The reason is very simple. The reason is we believe sincerely and firmly this is not about any one individual, but this is about the constitutional process of advise and consent. This is about learning what potential judges think before they go to the bench to make decisions that affect our lives for a generation. We are entitled to do that. That is what the Founding Fathers intended, it is clear.
    
In the first nomination to the Supreme Court, where many of the original Founding Fathers who wrote the Constitution were present, Mr. Rutledge, the nominee of President Washington, was turned down because they did not agree with his views on the Jay Treaty.
    
The other side wanted debate; when they had nominees, they questioned. People asked, what is the difference? My colleagues on the other side knew Judge Paez's record and they knew Judge Berzon's record, and they chose to vote against him. That is fair. We all let ideology enter into the way we vote. Those who deny it are being less than candid. Otherwise, the votes would be sprinkled evenly between Democrats and Republicans.
    
When the other side was there, let me read a quote from Senator Hatch, a man I greatly respect and regard as a friend.
    
The careful scrutiny of judicial nominees is one important step in the process, a step reserved to the Senate alone .    .    . I have no problem with those who want to review these nominees with great specificity.
    
My colleagues on the other side of the aisle, we are simply carrying out what Senator Hatch said was perfectly appropriate, what he had no problem with. We have not learned anything about Miguel Estrada's views with great specificity. And what we fear—and you will regret it if there comes a Democratic president—is that nominees will refuse to answer all questions, as Miguel Estrada did, and they will have no track record, and Presidents will endeavor to find people who have no known views when they nominate them to the bench.
    
My guess is the White House knows Miguel Estrada's views. My guess is they carefully researched it. When it comes time to make those views public, part of the constitutional process, we are denied that right by a nominee who stonewalls and does not answer the most obvious questions, and by a White House that will not release documents that have been released—in the cases of Mr. Bork, Justice Rehnquist, Mr. Civiletti, and Mr. Reynolds. All of them released the same documents the White House refuses to release now.

I ask the American people, ask yourselves a question, my friends. Why are they so afraid to reveal Miguel Estrada's record? If he proves to be a mainstream conservative, he will pass this Chamber. I have voted for over 100 of the 110 nominees. I disagree with most of them, but I don't think they are out of the mainstream, and the President deserves some benefit. But if Mr. Miguel Estrada's record shows he is so far beyond the mainstream that he will try to make law from the bench and not interpret the law, which those who are on the far left and far right tend to do, he should not be made a judge. The bottom line is, we have no way of answering that question until we follow Senator Hatch's mandate.

Mr. SCHUMER. If I might answer my good friend from Virginia, I have tremendous respect for his integrity.
    
Yes, there was a vote on Mr. Rutledge—after he revealed his views on the Jay Treaty and other issues. Of course, we should have a vote on Miguel Estrada. I don't disagree with that. But not until we know how he feels on the vital issues of the day.
    
How does he feel about the first amendment? How does he feel about the commerce clause? Does he believe, like some on the bench, that the commerce clause has been expanded too broadly and we ought to go back to regulation by the 50 States?
    
I have no idea, I say to my friend from Virginia. I have no idea of how he feels.

Mr. SCHUMER. I have no idea how he feels about the first amendment or about the 11th amendment, and the balance between the Federal Government and the States, the very issues the Founding Fathers wanted us to know.
    
The judiciary, and I know my colleague knows this, is the one nonelected branch of the government. The advice and consent clause——

Mr. SCHUMER. If Mr. Estrada feels good about the first amendment, I ask my colleague, why can't he tell us? And why can't he elaborate? What does he feel about Buckley v. Valeo, a case we debated here for a long time? It is a past case. How far does he feel the first amendment ought to go?
    
It is certainly not good enough, not only for the Senators but for the American people to hear my friend from Utah say he feels good about the first amendment, I say to my colleagues, or the second, or the fourth, or any of the other vital amendments.
    
I say to my colleagues, this is not a laughing matter. This is serious stuff about the one nonelected branch of Government.
    
The Founding Fathers wanted, in the advice and consent process, serious questions. Just as Senator Hatch said, it was a part of the process to ask those questions when President Clinton's nominees were before us. What is good for the goose is good for the gander. I yield.

Mr. SCHUMER. How many of these nominees were never brought up even for debate? Does my colleague think it is even worse than trying to figure out what his views are than never having the debate on the floor and never bringing them up and never giving them a chance?