Statement Of Senator Patrick Leahy
On The Cloture Vote On The Nomination Of Mr. Miguel Estrada
March 6, 2003

I would like to take a moment to thank the Democratic Leader and Assistant Leader Harry Reid for their efforts to safeguard our Constitution and the special role of the Senate in ensuring that our federal courts have judges who will fairly interpret the Constitution and the statutes we pass for the sake of all Americans. I would also like to thank all of the Democratic Senators who have spoken on the floor or who have joined together to preserve the integrity of the confirmation process.

What is at stake in this nomination is a lifetime appointment to the second highest court in the country. Most of the decisions issued by the D.C. Circuit in the nearly 1,400 appeals filed per year are final, because the Supreme Court now takes fewer than 100 cases from all over the country each year. Our D.C. Circuit has special jurisdiction over cases involving the rights of working Americans as well as the laws and regulations intended to protect our environment, safe work places and other important federal regulatory responsibilities. This is a court where privacy rights will either be retained or lost, and where thousands of individuals will have their final appeal in matters that affect their financial future, their health, their lives and their liberty, as well as the lives of their children and generations to come.

If a nominee’s record or responses raise doubts or concerns, these are matters for thorough scrutiny by the Senate, which is entrusted to review all of the information and materials relevant to a nominee’s fairness and experience. No one should be rewarded for stonewalling the Senate and the American people. Our freedoms are the fruit of too much sacrifice to fail to assure ourselves that the judges we confirm will be fair judges to all people and in all matters.

It is unfortunate that the White House and some Republicans have insisted on this confrontation rather than working with us to provide the needed information so that we could proceed to an up or down vote.

Some on the Republican side are having too much fun playing politics, seeking to pack our courts with ideologues and leveling baseless charges of bigotry to work with us to resolve the impasse over this nomination by providing information and proceeding to a fair vote. I was disappointed that Senator Bennett’s honest colloquy with Senator Reid and me on February 12, which pointed to a solution, were never allowed to go forward by hard-liners on the other side. I am disappointed that all my efforts and those of Senator Daschle and Senator Reid have been rejected by the White House. The letter that Senator Daschle sent to the President on February 11 pointed the way to resolving this matter. Republicans would apparently rather engage in politics.

Unfortunately, Republican name calling continued and the attack was extended to include members of the Congressional Hispanic Caucus, some of the highest and most respected Hispanic elected officials in the nation, and other Hispanic organizations and leaders that opposed this nomination. That is very, very disappointing.

Let me in these closing moments today before the cloture vote puncture some of the Republican myths surrounding this nomination.

First, Republicans rely on a letter from former Solicitors General stating a policy preference that did not acknowledge past precedent. Republicans claimed, in fact, that the request for memos written by Mr. Estrada is unprecedented. That is false and, during the course of this debate, even the Administration had to concede it was false. The smoking gun was a letter from the Department of Justice asking the Judiciary Committee to return similar memos written to the Solicitor General by lower level attorneys provided "to respond fully to the Committee’s request and to expedite the confirmation process" in another nomination. Buried in their rejection of Senator Daschle’s good faith effort to resolve this impasse was the late concession that other administrations had produced Solicitor General Office work papers in other nominations.

Yet, they continued to misstate the precedent, claiming incorrectly that disclosures were predicated on misconduct by those past nominees. However, past letters prove that Senate requested, and the Reagan administration provided, internal documents such as legal memos to and from William Rehnquist relating to civil rights and civil liberties; appeal recommendations to Robert Bork in civil rights cases and other memos he wrote; and a wide range of civil rights memos in Brad Reynolds nomination. Notably, the Senators’ interest in examining those writings and better understanding the nominees’ views and approach to interpreting the law as Executive Branch employees was not diminished in any way by the opportunity to review other writings. Rehnquist had written judicial opinions for 15 years and Bork had served for six years on the bench.

The real double standard here is that the President selected Mr. Estrada based in large part on his work for four and a half years in the Solicitor General’s Office as well as for his ideological views, but the Administration says that the Senate may not examine his written work from that office that would shed the most light on his views and that the Senate should not consider the very ideology it took into account in selecting a 39-year old, with no academic writings as a lawyer and no judicial experience, for a lifetime seat on the country’s second highest court. Another double standard at work here is that this is a nominee who is well known for having very passionate views about judicial decisions and legal policy and is well known for being outspoken, and yet he has refused to share his views with the very people charged with evaluating his nomination.

It seems to be a perversion of values to require the Senate to stumble in the dark about his views, when he shares his views quite freely with others and when this Administration has

selected him for the privilege of this high office, and for life, based on those views. This points to a second myth spun by Republicans: that Mr. Estrada cannot answer questions without violating judicial ethics, but as Justice Scalia wrote for the majority in Republican Party of Minnesota v.White, 122 S. Ct. 2528 (2002), "Even if it were possible to select judges who do not have preconceived views on legal issues, it would hardly be desirable to do so. ‘Proof that a Justice’s mind at the time he joined the Court was complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.’" So judicial ethics do not prevent sharing views.

Third, Republicans have claimed that this debate was unprecedented. That is false. Republicans not only filibustered the Supreme Court nomination of Abe Fortas, they filibustered the nominations of Judge Stephen Breyer, Judge Rosemary Barkett, Judge H. Lee Sarokin, Judge Richard Paez and Judge Marsha Berzon, among others. The truth is that filibusters on nominations and legislative matters and extended debate on judicial nominations, including circuit court nominations, has become more and more common through Republicans actions. Of course, when they are in the majority Republicans have more successfully defeated nominees by refusing to proceed on them and have not publicly explained their actions, preferring to act in secret under the cloak of anonymity.

The nomination of Judge Richard Paez, a Mexican American, illustrates quite clearly that the last filibuster of a circuit court nominee occurred during the last administration. He was first nominated in 1996 and not allowed a floor vote until 2000, three years ago this week, after his nomination had been pending for more than 1,500 days. In fact, his nomination had waited on the floor for an up or down vote for more than 20 months, 20 times longer than Mr. Estrada’s nomination. After Republicans lost a cloture vote on March 8, 2000, they moved "to indefinitely postpone" his nomination. Then-Chairman Hatch noted that such a motion was unprecedented following a cloture vote to end what he then acknowledged was a "filibuster" of Paez’s nomination, but 31 Republicans, many who have demanded a vote for Estrada, voted to postpone forever Paez’s vote.

Fourth, Republicans claim that the debate on this nomination has held up other business of the Senate. That is false. The truth is that Republicans objected to turning to the economic stimulus package and funding for first responders when Senator Daschle sought that action last week. During the course of this debate Democrats have willingly proceeded to confirming a number of other judges, passing the omnibus appropriations bill, passing short-term continuing resolutions to fund the government, passing the Hatch-Leahy PROTECT Act against child pornography and now debating the Moscow Treaty. The reason the Senate has not done more is because Republicans have not asked the Senate to turn to such matters as Senator Biden’s bill to grant asylum to Iraqi scientists and other matters were not ready for Senate consideration.

Fifth, Republicans have tried to create the impression that those who oppose this nomination are anti-Hispanic. That is false and they know it. The Congressional Hispanic Caucus is not anti-Hispanic, nor are the Mexican American Legal Defense and Education Fund,

the Puerto Rican Legal Defense and Education Fund, the Latino labor leaders, the National Association of Latino Elected Officials, the Southwest Voter Registration and Education Project, the California Chapter of the League of United Latin American Citizens (LULAC), the 75 Latino professors, the 15 former presidents of the Hispanic National Bar Association, the AFL-CIO, the Sierra Club, Dolores Huerta–the co-founder of the United Farm Workers of America -- Mario Obledo, Professor Paul Bender or the hundreds of Americans who oppose this nomination.

Democratic Senators are not anti-Hispanic. They are the Senators who pressed for the confirmations of Judge Richard Paez, Judge Sonia Sotomayor, Judge Jose Fuentes, Judge Kim Wardlaw, Judge Jose Cabranes, Judge Hilda Tagle, Judge Jose Linares, Judge James Otero and all of the other Hispanic nominees confirmed during the past 10 years. In fact, Democratic Senators also pressed for Senate confirmation of Enrique Moreno, Jorge Rangel, Christine Arguello and many other outstanding nominees on which the Republican Senate majority refused to proceed when they were nominated and renominated by President Clinton. Baseless Republican charges of bias prompted LULAC, an organization that initially endorsed the Estrada nomination, to disassociate itself with the Republican effort.

I urge the White House and Senate Republicans to end the political warfare and join with us in good faith to make sure the information that is needed to review this nomination is provided so that the Senate may conclude its consideration of this nomination. I urge the White House, as I have for more than two years to work with us and, quoting from the column published yesterday by Thomas Mann of The Brookings Institute, submit "a more balanced ticket of judicial nominees and engag[e] in genuine negotiations and compromise with both parties in Congress." The President promised to be a uniter not a divider, but he has continued to send us judicial nominees that divide our nation and, in this case, he has even managed to divide Hispanics across the country, unlike any of the prior nominees of both Democratic and Republican presidents.

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