Senator Leahy's Comments on Senate Floor against Estrada (26 Feb 2003) (Revised) (BARF ALERT)

Mr. LEAHY. Mr. President, we have heard a lot about Mr. Estrada and whether he has or has not answered questions. Obviously, I believe he has not. The President of the United States again today asked the Senate to do something that no President of either party should ask for. He asked the Senate to vote without having straightforward answers for a nominee for a lifetime position as a Federal judge on one of the most significant courts of this country.

That is not something that would help the Federal judiciary, but instead would set a dangerous precedent that would lessen the independence of the Federal judiciary. When a nominee does not answer basic questions, the Senate clearly has a constitutional responsibility to ask for the answers.

Mr. Estrada will not answer basic questions about his judicial philosophy, yet he has asked the Senate to confirm him to a lifetime job to the second highest court in the land where that judicial philosophy will determine, in many instances, which way that court will rule. That court affects every single American in countless ways through its decisions on everything from clean air and water to the rights of working men and women, from voting rights to all other civil rights law that protect minorities.

Becoming a Federal judge for a lifetime is a privilege, not a right. No nominee should be rewarded for stonewalling the Senate and the American people. The Constitution directs Senators to use their judgment in voting on judicial nominees, not to rubberstamp them.

The Democratic-controlled Senate confirmed a record 100 of President Bush's judicial nominees, acting faster and more fairly than the Republicans did with President Clinton's nominees. We began the process of the first hearing within 10 minutes of the time I became chairman of the Senate Judiciary Committee.

But President Bush has also proposed several controversial nominees, such as Miguel Estrada, who divide the American people and the Senate. The President can end this impasse. I hope he will act to give Senators the answers they need to make informed judgments about this nomination. The President can also help by choosing mainstream judicial nominees who can unite instead of divide the American people. The White House knows very well how easily and quickly they can bring this matter forward for a vote. They would rather make a political statement than to have a vote on a nomination.

Especially at a time when we have so many other issues before us--it has been said a record number of Americans are out of work--when a record number of jobs are being lost in this country, when more jobs are being lost under the President than any President, certainly in my lifetime, we are going to spend week after week in the Senate regarding an extremely highly paid lifetime job for one person.

It would seem a little bit more fair to those who do not have lifetime jobs, to [Page: S2793] GPO's PDF those who are not paid this amount, to the millions of Americans who have lost jobs during the last 2 years, to talk about ways of putting them back to work. I hope the President will pay attention to that.

I said more people have lost jobs during his Presidency than during the Presidency of certainly every President I have served with, and I believe any President in my lifetime.

Senator Feingold will introduce the Preserving Prescription Drug Discount Act tomorrow. (part about Feingold's prescription bill, etc. left out)

Mr. President, as I said, I think it is unfortunate. This matter could easily be resolved. The White House is uninterested in doing that.

The President's Counsel almost derisively dismissed a suggestion made by one of the respected senior Republicans in this body for resolving this issue. It makes me think they do not want to bring this to a vote. They would rather talk about bringing this to a vote. That does very little for either the independence of the Federal judiciary, and certainly the question of the independence of the Senate.

At times I get the impression the White House considers the Senate some kind of a constitutional nuisance to be ignored. It is almost as though they issue marching orders, and the Senate should fall in line, from how we should organize on through.

Presidents come and go. I respect all the Presidents and admire their willingness to lead our great country. But the Senate stays here long after any individual President. We either fulfill our obligations of advice and consent or we become a rubberstamp. Prior to my becoming chairman, for 6 months the Republican majority of that time did not hold a single hearing on any of President Bush's judicial nominees. In 17 months I held hearings on 103, we confirmed 100, and voted down 2. That is on top of hundreds upon hundreds of other nominees for everything from U.S. Marshals to the Director of the INS to the head of the Drug Enforcement Agency to the U.S. attorneys. It was pretty productive.

When I listen to some of the statements being made by my friends on the other side, you would think we did nothing. Maybe they are thinking of the months upon months upon months when they would not move any judges for President Clinton and do not want to look at the fact that we were moving them almost every week. We had to, during 17 months. During those 17 months we had recesses, adjournments, anthrax attacks, the Senate being closed down after September 11. We kept turning out these judges.

Many were controversial. Most were conservative. We kept turning them out. Maybe to obscure the fact that we were moving President Bush's judges much faster than the Republicans moved President Clinton's, when we actually dared vote against one, the attacks that came. We were misquoted for our reasons. We had a judge who was defeated basically on questions of competence and willingness to follow the law. The Democrats who voted against him had all kinds of motives ascribed to them. We were told we called him a racist, even though I heard Democratic Senator after Democratic Senator say they did not consider him that. We had the religion of the majority of Members, Democratic Members in the Senate, attacked--including high officials of the Republican Party attacked the religious backgrounds of at least 8 members of the 10 members, Democrats in the Senate Judiciary Committee. But nobody, nobody wanted to discuss the fact that this particular judge was voted down because he was not qualified to be a circuit court of appeals judge.

These are the kinds of things. It is almost like no good deed will go unpunished. The Democrats moved through judges much faster for President Bush than Republicans did for President Clinton, and we are the ones being called obstructionists.

Mr. Estrada's short legal career has been successful. By all accounts he is a good appellate lawyer and legal advocate who has had a series of prestigious positions and is professionally and financially successful. As the grandson of immigrants, as a son, a father and grandfather, I know that no matter the [Page: S2794] GPO's PDF country of origin or economic background, a family takes pride in the success of its children. Mr. Estrada's family has much to be proud of in his accomplishments, regardless of the outcome of this nomination.

Mr. Estrada, who is now 41 years old, has a successful legal career at a prominent corporate law firm, which was the firm of President Reagan's first Attorney General William French Smith and that of President Bush's current Solicitor General Ted Olson.MB< I am told that Mr. Olson, along with Kenneth Starr have been among Mr. Estrada's conservative mentors. At his relatively young age, Mr. Estrada has become a partner in the law firm of Gibson, Dunn & Crutcher having previously worked with the Wall Street law firm of Wachtell, Lipton, Rosen & Katz. While in private practice his clients included major investment backs and health care providers. Mr. Estrada's financial statement, which Senator Hatch inserted into the Congressional Record, says that he earned more than $500,000 a year two years ago and makes him look like a millionaire. At his hearing, Mr. Estrada testified: ``I have never known what it is to be poor, and I am very thankful to my parents for that. And I have never known what it is to be incredibly rich either, or even very rich, or rich.'' I will let his financial statement speak for itself on that point.

Mr. Estrada appears to be a highly successful and well-compensated lawyer in a first-rate law firm. As I say, his family and friends surely take pride in this success, and rightly so.

In the almost six years he has been with Gibson, Dunn & Crutcher, with its thriving appellate court practice and the successful Supreme Court practice developed by his senior partner Ted Olson, who was confirmed to be Solicitor General in June 2001, Mr. Estrada has apparently had only one argument before the Supreme Court, however. That was in connection with a habeas petition on which he worked pro bono when he first came to the firm. This is also one of the only pro bono cases he has taken in his entire legal career.

I would also note his role developing legal arguments and writing briefs on behalf of Governor Bush following the 2000 election that resulted in a 5 to 4 majority of the United States Supreme Court's intervention to halt the counting of ballots in Florida and resulting in the selection of President George W. Bush. This information failed to make it into Mr. Estrada's Judiciary Committee questionnaire and list of top 10 legal matters. We know about his involvement in that case because the Puerto Rican Legal Defense and Education asked him about it and included reference to it in their extensive report on this nomination.

Much has been said of Mr. Estrada's time working in the Office of the Solicitor General at the Department of Justice. I understand he was hired for that role by Kenneth Starr when he was the Solicitor General for the first President Bush in 1992. It was in that government post which Mr. Estrada continued during the first term of the Clinton administration in which he had 14 opportunities to argue before the Supreme Court. Of course, one of the principal functions of the Solicitor General's Office is to argue for the Government in behalf of the Supreme Court, and in fact argues more than anybody else. So it is no surprise when attorneys do so.

But there comes the rub. Mr. Estrada's supporters make much of his four and a half years in the Solicitor General's Office and say this qualifies him to an appointment to the DC Circuit. The work that he did, according to the supporters in the Solicitor General's Office, ipso facto qualifies him for appointment to the District of Columbia Circuit. But when we ask, Can we see the work he did? Oh, no, no. Take our word for it.

Interestingly enough, when I asked Mr. Estrada during the first meeting we had whether he had any objection to turning over the material and the work he did, he said no. He would be glad to. He is proud of it. It reflected his views. He would be glad to turn it over. When he was asked during the hearings whether he would be willing to turn it over, he personally would be willing to do so. He was under oath and he said certainly. But the administration says no.

The Administration is seeking to have it both ways: Credit Mr. Estrada with the experience while forbidding the Senate from reviewing for itself what he did in that government job. Given the public comments of a former Deputy Solicitor General and Mr. Estrada's direct supervisor at the Office of Solicitor General, as well as the lack of a written record of Mr. Estrada's views and judicial philosophy and Mr. Estrada's failure at his hearing to satisfy Senators by responding to their questions, there is ample basis on which to request the production of government work papers from the time during which Mr. Estrada was in the Solicitor General's Office. There is also ample precedent for such papers being shared with the Senate in the past.

It makes you wonder why they won't show us Mr. Estrada's paperwork. The same paperwork that was made available during the Carter administration. It was made available during the Reagan administration. It has been made available actually every time the Senate Judiciary Committee has asked for it.

The Democratic leader pointed out the way to resolve the stalemate in his February 11, 2003, letter. It is curious. We asked for materials of cases long since decided. We are not asking for material on a pending case. Certainly, if there is material on a pending case, I would be willing to listen to an argument to hold that back. But how can we argue to hold back on material on a case long decided?

When similar requests were made of material written by William Rehnquist, it was forthcoming. When similar requests were made for material written by Robert Bork, it was forthcoming. When similar material was requested written by Benjamin Civiletti, who became Attorney General, it was forthcoming. When similar material was requested for the nomination of William Bradford Reynolds, it was forthcoming. When similar material was requested for the nomination of Steven Trott, it was forthcoming. But then when it is requested of Mr. Estrada--and this is the only time I can remember such a

Again, you have to ask why. What is in there that they don't want us to see?

Take the public comments of a former Deputy Solicitor General, Mr. Estrada's direct supervisor at the Office of Solicitor General, as well as the lack of a written record of Mr. Estrada's views and judicial philosophy and Mr. Estrada's failure during hearings to satisfy Senators by responding to their questions, then there is ample bases on which to request products of Government workpapers during the time in which Mr. Estrada was in the Solicitor General's Office--papers put together and being paid for by the taxpayers in a job which the administration now says shows why he is entitled to be in this lifetime position. There is ample precedent for such papers being shared with the Senate in the past.

I cannot think of a time when the papers were requested when the administration turned them down.

Professor Bender, Mr. Estrada's supervisor at the Office of the Solicitor General, indicated that when he was supervising Mr. Estrada he did not view Mr. Estrada as reading the law fairly. He viewed Mr. Estrada as one whose personal views and desires colored his readings and presentations of the law, and as someone who might well be an ideologue to be appointed to the bench.

I would think if Senators are going to be fair about this nomination, whether they are Republicans or Democrats, they would want to know the answer to that before they put somebody in a lifetime position.

But the reason we say this, if this work is what qualifies him, then we ought to know what he did in this work.

Now, Professor Bender, Mr. Estrada's supervisor, is reported to have stated that Mr. Estrada was so ``ideologically driven that he couldn't be trusted to state the law in a fair, neutral way.'' He stated that he ``could not rely on [Mr. Estrada's] written work to be a neutral statement of the law.'' He also

[Page: S2795] GPO's PDF indicated that he viewed Mr. Estrada as ``smart and charming, but he is a right-wing ideologue'' and one who ``lacks judgment.''

Now, this is somebody who has actually seen his work. Unlike those of us who are not allowed to see it, he has seen it.

Veteran Supreme Court lawyer Carter G. Phillips has also noted that Mr. Estrada, while ``extremely self-confident'' is a ``more strident personality'' than the other current nominee for this court, John Roberts.

In fact, when Professor Bender ventured these honest opinions, he suffered partisan attacks by Republicans. Similar to what happened to those of us on the Democratic side on the Judiciary Committee, who had our religion attacked by Republican officeholders because we dared to vote against one of President Bush's nominees, Professor Bender was attacked because he dared to question one of President Bush's nominees.

He was maligned for serving as the general counsel to a commission appointed by President Nixon. He was maligned for legal positions taken by the Clinton administration. Republicans have chosen character assassination and demonization of Professor Bender. Their approach is to deny access to Government records and to seek to destroy anyone who would raise a concern about Mr. Estrada's ideology affecting his legal work.

To his credit, Professor Bender was not intimidated by these personal attacks. He wrote to Chairman Hatch reaffirming his views just days ago. He also did this because he found that he was being misquoted time and time again on the floor of the Senate, and he wanted us to know exactly what his views are.

Contrast this to what the Senate Democrats are trying to do. We would like to get to the merits of the matter. The administration has responded by stonewalling our request. They have attacked us for our attempts to reach a fair resolution of this matter.

I would like to have the papers. I would like to have a hearing where we could ask questions from the papers, where we actually know what is in these things that they say substantiate the reason for Mr. Estrada's nomination.

The administration wants to have it both ways. They say, if you saw these brilliant writings, then you would want him to be a judge. So we say: Fine, let's see the writings. They say: Oh, no, you can't see them. Take our word.

You can't really have it both ways. If this is what shows he is qualified to be a judge, then let us see what is in it and then let us make up our own minds. Then Senators can vote for or against, but at least they will know what it is based on.

One major person in his department says he is not qualified. We are not relying on that. We would like to see the papers and make up our own mind.

One of the significant questions raised by this nomination is whether Mr. Estrada will be a fair judge without a political agenda. To ascertain that, let's review his work when he was serving in a position of trust for the United States, paid for by the American taxpayers.

I believe it is fair to explore whether Mr. Estrada stated the law in a fair and neutral way while asked to do so in the

Solicitor General's Office. Remember, the Solicitor General is not just an advocate before the U.S. Supreme Court. The Solicitor General is that unique person, in arguing before the U.S. Supreme Court, who is expected--by the Court and by the American people--to state the law objectively.

I have heard the Solicitor General before the U.S. Supreme Court--in years past, and even from my days in law school--saying things to the effect: Here is the law that would uphold the position of the Government, but the Court should be aware that there is another body of law on the other side. They are supposed to state it fairly and impartially so the Court can rely on them.

Having said that, we have somebody in the Solicitor General's Office preparing this material so that the Supreme Court can be given an objective, fair, and evenhanded view of the law. Isn't it fair game to ask whether that person fulfilled their duty in the Solicitor General's Office? Isn't it fair to ask, when they prepared such material, whether they did it in a fair, evenhanded fashion? Or did they do it in an ideological manner? Did they do it to carry out an agenda?

I think it is a particularly significant question. We are faced with a nominee for a lifetime appointment to a Federal court, and to a Federal court as important as the D.C. Circuit. Usually when somebody is being nominated to such an important court, they have been a judge, they have been a district court judge, they have had a position where you have been able to see how they interpret the law and how they use it, and whether they did so fairly.

That is not the case here. Here we have one place--one place--where by law, custom, and practice he is required to state the law in an evenhanded fashion, not ideologically driven but impartially driven. And the one place where we can ask whether he did that or not, the administration says: Trust us. He did, but we will not show you.

I remember that wonderful saying that President Reagan made up, to the great surprise of the Russians, because he said it was a Russian saying it; but, still, it is a wonderful saying, where he said: Trust but verify. Well, I am tied at the hip with former President Reagan on this one. I will trust, but I would like to verify. I would like to verify.

I think Senators should have the opportunity to review for themselves the documents Mr. Estrada wrote and make their own independent judgments about Mr. Estrada's writings and his ability to apply the law without regard to strongly held personal beliefs.

Objectivity and openmindedness are crucial to appellate deliberations and decisionmaking. This is an area where we could answer that question. We can answer the question. In the Office of the Solicitor General there is a requirement to be objective, not ideological, a requirement to be straightforward and not political. But we are not allowed to see whether he fulfilled that requirement. Don't you think we should at least ask if it was there?

If he had been a district judge before, and had written opinions, which would show whether he was objective and evenhanded, wouldn't we say, let's read them? I cannot imagine any Republican or Democrat saying we would not read them before we made up our mind.

Well, he was not a district judge. But he was in a position where he was required to be nonideological, where he was required to be honest, where he was required to be straightforward, where he was required to be nonpolitical, and we are not allowed to see that record.

Let's see the record. Let us ask questions about it, especially in this case, where one of the people who has looked at the record--one of his supervisors--questions whether he was objective. Isn't that something we should determine? In a job where he was required by law, by practice, and by custom to be objective and nonideological, and intellectually honest, if you have somebody who says he was not, so shouldn't we know that? Because if that is the case--when he is there just for a term--how much worse will it be if it is a lifetime position?

Let's have those papers. Let's ask the questions. Then let Senators make up their minds. I am never going to vote for a judge if I cannot have the answers. I remember when President Clinton had nominees held up here for 2, 3, 4 years. My friends on the Republican side asked question after question. Some were legitimate, some were not. I remember one being asked how she voted on a secret ballot in a State election. I think we can all agree that is a question nobody should be asked--how they vote in an election in a State. But we waited year after year, and they said they must have these answers. Shouldn't we?

I heard that Mr. Estrada was editor of the Harvard Law Review. Some have gone so far as to make it seem as if he was editor in chief or president of the review. That would be pretty impressive. Actually, he was one of 70 student editors working at the Harvard Law Review in 1986. That should be impressive enough. I think most law students would say that is pretty darn impressive. But you don't have to embellish it, as some of his supporters have, and make it far more than what it was. I am impressed that he was 1 of 70. You don't have to embellish it to say he was the No. 1 editor in chief.

[Page: S2796] GPO's PDF We have a lot of people who fall into that category. Claire Sylvia, who worked for a time at our Senate legal counsel's office, was one of those editors. I never remember her claiming to be the editor in chief.

Mr. REID. Did I hear the Senator right that all these statements I have heard on the Senate floor that he was the editor--in fact, he was one of 70 editors?

Mr. LEAHY. That is what I am saying. We have had a lot of people who worked for the Senate and for our committees and worked for various Senator's offices who have been one of those 70. It is a proud achievement. I keep worrying when we are seeing somebody gilding the lily on this person, when we see his background and his history change constantly to make it better and better. Well, he has things to be proud of, but you wonder why his supporters have to constantly change it and embellish it.

Jeff Toobin, who has become a journalist, author, and legal commentator, was a student editor there that year. Actually, the supervising editor, who had a far more significant position, was none other than Elena Kagan. I mention this because my friends on the other side said that Mr. Estrada's being one of the 70 editors is reason to be on the court. Elena Kagan was a supervising editor. Now, that is really significant. Professor Kagan is a Harvard law professor. Professor Kagan served as Mr. Estrada's supervising editor, got the highest qualification by the ABA; and based on those qualifications, President Clinton nominated her to the DC Circuit.

I mention this because so much has been made by those on the other side, who say even if you are one of the 70 editors, and got a high qualification from the ABA, that should be enough. Elena Kagan was a law professor and was a supervising editor. She was nominated by President Clinton, but guess what happened. The Republicans never allowed her to even have a hearing, to say nothing of a vote. She was humiliated, not even allowed to have a hearing, to say nothing about a vote.

I worry when I hear Mr. Estrada's supporters talk about his family history. I was impressed when talking to him about his family. But I remember the first stories, and you have heard them repeated here. You almost thought he was a barefoot immigrant coming to America, unable to speak English, and so on and so forth. Actually, he grew up in a relatively wealthy and privileged household. His parents sent him to private school in Honduras, where the annual cost was almost the same as the annual per capita income for most Hondurans during that period.

According to news accounts, his late father was a prominent and politically conservative lawyer who helped found the country's first private university and was also a bank vice president.

I recall that the Honduran Ambassador took time out from his busy schedule last fall to attend a Judiciary Committee hearing, which made me think about the rumors that had circulated that Mr. Estrada's family included relatives who had been on the country's diplomatic corps. I understand his mother was a successful accountant in her own right. She should be proud of that. She is the daughter of a teacher-diplomat. Mr. Estrada completed 12 years of primary and secondary education at a private academy and at a university where he studied English. These are all commendable things--but a lot different than the image we are given.

Again I ask, why not just tell the story as it is? Why not tell the story straightforward and show us the papers straightforward? Why do you have to constantly embellish things? That is why when I am told by the administration: Just trust us, we have looked at the papers and he was objective and honest and nonideological, take our word for it--I haven't been able to take their word for much in this case so far. Why should I take it for something that they don't want me to see?

We do know some things about him. According to news accounts, after one of his mentors, Kenneth Starr, left the Office of the Solicitor General, he said Estrada was ``left working for a Justice Department whose views he didn't always agree with.''

While at the Solicitor General's Office, Estrada did argue 14 cases before the Supreme Court, primarily criminal matters, but sometimes in the area of banking law. It is worth noting that Seth Waxman was not listed as Solicitor General on the briefs of any of those cases and, apparently, did not directly supervise his work.

When he joined Gibson, Dunn & Crutcher and worked with Ted Olsen, Mr. Estrada gave interviews in which he defended Ken Starr's investigation of President Clinton. He has a right to do that. Some of us would question the $75 million to $100 million that was wasted on the investigations, but Mr. Estrada felt they were well worthwhile. He helped on then-Governor George Bush's litigation over the election results in Florida. He went on to the Justice Department transition team.

I outline this personal history because some partisans have taken liberties with Mr. Estrada's personal and professional background in order to try to make his case more compelling. There is no doubt that Mr. Estrada is a rising star in conservative legal circles. He is a Federalist Society member and has been mentored by Kenneth Starr and Ted Olson.

Certainly, he has a right to be involved with the Federalist Society. There is nothing wrong with that. In fact, he should probably use the membership.

One judicial nominee at his hearing was honest and said he hadn't really heard of the Federalist Society. But he was told if he wanted to be a judge with this administration, he better go join it. He did and he is a judge. It worked for him. In this case, it has served him well, as it has a number of other executive branch nominees.

This organization is sometimes mischaracterized as a mere debating society, and, as I said, one nominee was very honest while under oath and said: Yes, he was told to join it.

The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order.

They state one of their goals is the ``reordering of priorities within the legal system'' and its objective ``requires restoring the recognition of the importance of lawyers, judges, and law professors.''

I am not sure how Mr. Estrada plans to reorder priorities and values if he is confirmed as a judge, but we know he has strongly held views he will not share with us. Again, we go back to the one area where he is required to be objective, not ideological, and nonpolitical, and that it in the Office of the Solicitor General. But those writings we are not allowed to see. Those writings would show if he is able to be nonideological, nonpolitical, and straightforward because he is required to in the Solicitor General's Office, but they will not show us what he wrote.

What worries me is that a man who has had so many embellishments made on his record by his supporters, when his supporters question everything from the religion to the biases of those who dare question him, it makes one wonder why do they hide this.

In his hearing testimony, Mr. Estrada did admit ``having made some pretty ruthless assessments and the legal views of some [government] agencies which I'm glad to say were sometimes vindicated in the courts later. .....

He did not tell us what those assessments were. He did not say which cases vindicated his views. We are left to wonder whether given the awesome power of a lifetime appointment as a Federal judge that he would act on his own ``ruthless assessments'' or on the facts, the litigants, and the law before him.

His friends and supporters acknowledge that Mr. Estrada has strong conservative views. In fact, they acknowledge far more than Mr. Estrada himself. His classmate Arturo Corrales, a former Presidential candidate in Honduras, said Mr. Estrada's socially conservative views were already evidenced when he was a teenager, including his opposition to abortion. Other colleagues acknowledge his strong views as well. His former law school classmate, Ron Klain, supports him even though Mr. Estrada is ``politically conservative'' and ``has passionate views [Page: S2797] GPO's PDF about legal policy.'' His former colleague Robert Litt supports Mr. Estrada's confirmation, even though he disagrees with his ``legal philosophy.''

They do so, however, with the luxury of knowing what Mr. Estrada's views of the Constitution are. That is a luxury that 100 Members of this body do not have. Mr. Estrada refused to share those views with those entrusted by the Constitution with determining whether he should be accorded the power of a lifetime Federal judicial appointment. The Senate wants to know before making that decision whether he can be trusted to apply the law fairly and impartially without regard to his deeply held ideas and views, whatever they may be. It is hard to imagine that he would freely cast his views aside and be objective in a court when he will not even tell us what they are.

Members of the Congressional Hispanic Caucus who met with him noted that Mr. Estrada ``did not demonstrate a sense of inherent `unfairness' or `justice' in cases that have had a great impact on the Hispanic community.''

They noted that, in their view, the ``appointment of a Latino to reflect diversity is rendered meaningless unless the nominee can demonstrate an understanding of the historical role courts have played in the lives of minorities in extending equal protections and rights.''

Race or ethnicity and gender are, of course, no substitutes for the wisdom, experience, fairness, and impartiality that qualify someone to be a federal judge entrusted with a lifetime appointment. White men should get no presumption of competence or entitlement. Hispanic and African American men and women should not be presumed to be incompetent. All nominees should be treated fairly.

When one gets down to the bottom line, the burden of proof of suitability for lifetime appointment rests on the nominee and the Administration. We must carefully examine the records of all nominees to high offices, but we know the benefits of diversity and how it contributes to achieving and improving justice in America. As Antonia Hernandez wrote in the Wall Street Journal: ``The fact that a nominee is Latino should not be a shield from full inquiry, particularly when a nominee's record is sparse, as in Mr. Estrada's case. It is vital to know more about a nominee's philosophies for interpreting and applying the Constitution and the laws.'' Members of the Congressional Hispanic Caucus has said much the same thing.

Our freedoms are the fruit of too much sacrifice to fail to assure ourselves that the judges we vote to confirm have a commitment to upholding the Constitution, following precedent, and listening to claims without fear or favor. When a President is nominating individuals to tip the balance, stack the deck, or to pack the courts with ideologues, the Senate would be abdicating its responsibilities to ignore the very criteria that led to selection of such a nominee.

So, when some organizations come forward and say they are supporting a nominee because of their ideology, they cannot at the same time say we should not ask about that ideology. When the supporters come forward and say his brilliant writings in the Solicitor General's Office qualify him to be a judge, they cannot then in the next breath say, but you cannot see what those brilliant writings were, you have to take our word for it.

Under our Founders' design, the political branches share the power of appointment: the President has the power to nominate or propose judges, but the Senate has a corresponding power to confirm or reject those nominations. That is one of the ingenious checks and balances of our federal system. If a nominee's record, or lack of a record, raises doubts, these are matters for [Page: S2798] GPO's PDF thorough scrutiny by the Senate, which is entrusted to review all of the information and materials relevant to a nominee's record relating to fairness, impartiality, bias, experience, or other matters.

Unlike elected officials, these are lifetime jobs, so the Senate Judiciary Committee must undertake an inquiry to be assured that a nominee should be confirmed to high office. When there is no judicial experience to look to, it is all the more critical that the Committee inquire fully into a nominee's experience, record, views and understanding of our fundamental rights.

Now, Chairman Hatch is saying precisely the same thing I am saying. The difference is, he said this speaking to the Federalist Society. He said this when President Clinton was nominating the judges, not when President Bush was nominating them.

In 1997, he told the Utah Chapter of the Federalist Society that ``the Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining who will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails . . . . Determining which of President Clinton's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of nominees' jurisprudential views.'' In the case of Mr. Estrada, however, the nominee has refused to provide us many answers at all about the types of jurisprudential views referenced by Chairman Hatch.

Sauce for the goose, Mr. Chairman, sauce for the gander. You were right then. I take the same position today. I am right.

Most Americans want nominees who will be fair and impartial judges. An independent judiciary is the people's bulwark against a loss of their freedoms and rights. I think the rights at stake are simply too important to take a chance on a lifetime appointment to this high court, to make a decision we cannot reverse, if Mr. Estrada were to turn out to be the activist and ideologues that many of those who have heard him speak candidly. What little record we have calls into question whether he would be neutral referee or an advocate and activist from the bench.

In closing, he had a job in which he was required by law, by custom, by practice, to be impartial and nonideological. He wrote extensively in that taxpayer-funded job where he was required to be nonideological, impartial, straightforward, but he will not show what he wrote.

We are told by the administration, trust us. We have looked at it. He is impartial. We say, then let us see it. Ah, you say, well, then you are a racist, or you have a religious bias, or whatever might be the reason of the day. We have heard so many misstatements from the other side about Mr. Estrada, let's go to the one thing that can be looked at objectively: His writings.

It can be done. A distinguished member of the other party has suggested that it be done. The White House ought to listen to him and they should stop saying opposition to the nomination of Miguel Estrada is anti-Hispanic. We have risen in this Chamber day after day to demonstrate why this is false, referring to, among other things, the numbers of well-known and well-respected Latino organizations who also oppose this nomination.

We have introduced into the record letters from organizations such as the Mexican American Legal Defense Fund, opposed to Mr. Estrada; the Southwest Voter Registration and Education Project, opposed to Mr. Estrada; the Puerto Rican Legal Defense and Education Fund, opposed to Mr. Estrada; a letter from 52 Latino labor leaders, opposed to Mr. Estrada; the Puerto Rican Bar Association of Illinois, opposed to Mr. Estrada. Each one of these explain their thoughtful and principled opposition to Mr. Estrada's nomination.

Blaming someone for their situation at birth is bigotry - whether it's skin color, nationality or "class". Punishing success and rewarding failure is Democratic destuctiveness at its basest.

Having wealthy parents is "bad"? Guess Joe Kennedy's kids weren't deserving of their cushy federal jobs - add Chelsea Clinton, the child of every serving Senator, trial lawyer, celebrity, and Jesse Jackson, Jr..

Truth a Frequent Casualty in People for the American Way Memo on Estrada Nomination: detailed de-bunking of Pfaw's latest scheme (Pfaw's dishonest Feb.24th media campaign).

Freepers, please forward this media "credibility gap" fix-it kit - to the media. FR thread

One major person in his department says he is not qualified. We are not relying on that. We would like to see the papers and make up our own mind.

LOL! Well, one person said he is not qualified, that should be enough to disqualify him. Of course we know that seeing the papers is just an excuse for them to say NO because, they have already made up their minds.

PhiKap, we need to keep the Estrada issue front and center!

Dear President Bush,
With the Surpeme Court session getting ready to close, it may well be time for perhaps the most important domestic decision of your presidency: the appointment of a Supreme Court Justice(s). The main reason why I supported you in 2000 and why I wanted Daschle out of power in 02 (and 04) has to do with the courts. I want America courts to interpret law, not write law. During your presidential campaign you said Thomas and Scalia were your two model justices. Those are excellent models. The High Court needs more like them. Clarence Thomas recently said to students that the tough cases were when what he wanted to do was different from what the law said. And he goes by the law. This should be a model philosophy for our justices. Your father, President Bush lost his reelection campaign for 3 main reasosn, as far as I can see. 1. he broke the no new taxes pledge 2. David Souter 3. Clinton convinced people we were in a Bush recession (which we had already come out of by the time Clinton was getting sworn in)

I urge you to learn from all three of these: 1. on taxes, you're doing great. Awesome job on the tax cut. 2. good job so far on judicial appointments. I want to see more of a fight for Estrada, Owen, and Pickering, but I commend you on your nominations. 3. by staying engaged in the economic debate you'll serve yourself well

I have been thoroughly impressed with your handling of al Queida, Iraq, and terrorism. You have inspired confidence and have shown great leadership.

But I want to remind you that your Supreme Court pick(s) will be with us LONG after you have departed office. I urge you to avoid the tempation to find a "compromise" pick. Go for a Scalia or Thomas. Don't go for an O'Connor or Kennedy. To be specific, get someone who is pro-life. Roe v Wade is one of the worst court decisions I know of, and it's the perfect example of unrestrained judicial power.

I know the temptation will be tremendous on you to nominate a moderate. But remember who your true supporters are. I am not a important leader or politician. I am "simply" a citizen who has been an enthusiatic supporter of you. I am willing to accept compromise in many areas of government but I will watch your Court nomiantions extremely closely. What the Senate Dems are doing right now is disgusting, but as the President you have the bully pulpit to stop it. Democrats will back down if you turn up serious heat on them.

Moreover, I think public opinion is shifting towards the pro-life position. Dems will want you to nominate a moderate, but almost all will vote against you anyways. Pro-choice Repubs will likely still vote for you if you nominate a Scalia, after all, you campaigned on it. So Mr. President, I urge you to stick with your campaign statements and nominate justices who believe in judicial restraint, like Scalia and Thomas.

Happy Memorial Day and may God bless you and your family.

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