|
Statement Of Senator Patrick
Leahy
On The Cloture Vote
On The Nomination Of Miguel Estrada
March 18, 2003
This is not a day, in my
view, when the Senate majority should be pressing forward on this
divisive matter. Nor has anything changed since last Thursday or
since March 6 when the Republican majority scheduled two earlier
cloture votes on this nomination. The Administration’s obstinacy
continues to impede progress to resolve this standoff. The
Administration remains intent on packing the federal circuit courts
and on insisting that the Senate rubber stamp its nominees without
fulfilling the Senate’s constitutional advise and consent role in this
most important process. The White House could have long ago helped
solve the impasse on the Estrada nomination by honoring the Senate’s
role in the appointment process and providing the Senate with access
to Mr. Estrada’s legal work. Past administrations have provided such
legal memoranda in connection with the nominations of Robert Bork,
William Rehnquist, Brad Reynolds, Stephen Trott
and Ben Civiletti, and even this
Administration did so with a nominee to the Environmental Protection
Agency.
We have the statement of
Attorney General Robert H. Jackson, who later became one of our finest
Supreme Court Justices, when he wrote an Attorney General Opinion in
1941 acknowledging that among the occasions when exceptions should be
made and Executive department files would be produced to the Congress
would be confirmations. As Attorney General Jackson noted:
“Of course, where the
public interest has seemed to justify it, information as to particular
situations has been supplied to congressional committees by me and by
former Attorneys General. For example, I have taken the position that
committees called upon to pass on the confirmation of persons
recommended for appointment by the Attorney General would be afforded
confidential access to any information that we have — because no
candidate’s name is submitted without his
knowledge and the Department does not intend to submit the name of any
person whose entire history will not stand light.”
40
U.S. Op. Atty. Gen. 45
(1941).
Senator Durbin noted last
week that the Administration has poorly served this nominee and given
Mr. Estrada very bad advice. I agree.
The Bush Administration
claimed that no Administration had ever provided materials like Mr.
Estrada’s work papers in connection with a nomination. We have now
demonstrated over and over that precedents exist
going back over the last 20 years.
Today I would like to
mention additional examples of similar materials that were provided to
Congress. On
February 1, 1982, the Senate Finance
Committee held a hearing to consider legislation to deny Federal
tax-exempt status to private schools practicing racial discrimination,
after the Reagan Administration decided to reverse a long-standing
policy and grant exemptions to segregationist schools. A number of
Justice Department memoranda, as well as communications between
high-level officials, were turned over by the Reagan Administration to
the Senate Finance Committee in connection with the hearing, just
months after the documents were first written.
The issues at that hearing
reveal that some of the documents turned over were much more sensitive
than those requested of Mr. Estrada, but they were still provided to
Congress by the Reagan Administration. After a long and intense
debate in the Reagan Justice Department and among high-level Justice
and Treasury Department officials and White House counsel, on
January 8, 1982,
the Reagan Justice Department announced that it would discontinue the
IRS’s long-standing policy of denying tax-exempt status to racially
discriminatory private schools. The Justice Department also changed
its position in the Bob Jones case before the Supreme Court,
abandoning its defense of the policy that prohibited tax exemptions
for discriminatory schools.
One of President Bush’s
current circuit court nominees,
Carolyn Kuhl,
was an aide to Attorney General William French Smith at the time and
participated in urging reversal of the policy.
After the Justice
Department decision was announced, more than 200 lawyers and others in
the Justice Department’s civil rights division sent a letter to
William Bradford Reynolds, who then headed the civil rights division,
expressing “serious concerns” about the Reagan Administration’s
decision that racially discriminatory private schools are entitled to
tax exemptions. And they questioned the division’s commitment to
vigorously enforce the nation’s civil rights laws.
In response to such
protests, President Reagan proposed legislation to make it illegal to
grant tax exemptions to schools that discriminate on racial grounds.
The Senate Committee on Finance, and the House Committee on Ways and
Means, scheduled public hearings on the federal government’s policy
regarding the effect of racial discrimination on the tax-exempt status
of private schools.
The Senate Finance
Committee held its hearing on
February 1, 1982. In connection with this
hearing, the Committee requested high-level Justice Department
memoranda, correspondence, deliberations, and other documents related
to the reversal of the Administration’s position. The documents
turned over to the Senate Finance Committee included:
-
Letters from Representative Trent Lott
to Secretary Regan, IRS Commissioner Egger, and Solicitor General
Lee, urging change in the Administration’s position on Bob Jones;
-
Memorandum from Associate Deputy
Attorney General Bruce Fein to Deputy Attorney General Edward
Schmults, advising
Schmults on private schools;
-
Memorandum from Carolyn
Kuhl, Special Assistant to the Attorney
General, to Ken Starr, noting Reagan/Bush campaign statements on
private schools;
-
Memorandum from Peter
Wallison, Treasury General Counsel, to
Secretary Regan briefing him on meeting with Representative Lott;
-
Memorandum from Treasury General
Counsel Wallison to Deputy Secretary
McNamar and Secretary Regan on
Government’s position in Bob Jones case;
-
Memorandum from Civil Rights Division
Head, William Bradford Reynolds, to Attorney General Smith
justifying changes in Administration’s position on Bob Jones;
-
Memorandum from Treasury Assistant
Secretary for Public Affairs, Ann McLaughlin, to Deputy Secretary
McNamar on “press strategy” for
releasing Bob Jones decision;
-
Memorandum from IRS Chief Counsel
Gideon to Treasury Deputy General Counsel Government’s statement in
Bob Jones;
-
Letter from IRS Chief Counsel Gideon
to Civil Rights Division Head Reynolds on formulation of
Government’s statement in Bob Jones; and
-
Memorandum from Assistant Attorney
General Theodore Olson (Office of Legal Counsel) to Attorney General
Smith and Deputy Attorney General Schmults
responding to the analysis in Reynolds’ memo on Bob Jones.
Clearly, in 1982, the
Republican administration at that time released to the Senate
documents that included internal memoranda among high-level Justice
Department officials, inter-agency communications, and documents
relating to the government’s position in an important Supreme Court
case. They also included letters to the Solicitor General.
Moreover, the Reagan
Administration turned over these documents within months after
being written, and no harm was done to the workings of the Justice
Department or the Administration. The Bush Administration is claiming
that it is unprecedented to turn over such documents – and that the
release of documents written by Mr. Estrada six to ten years
earlier would irreparably harm the government. I urge the
Administration and Republican Senators to consider this additional
precedent. Certainly legislation is different from a nomination.
While both are matters for the Senate, legislation is different in
that it can be amended or revised. A nomination is a lifetime
appointment.
In 2001, this White House
agreed to give access to memoranda written by Jeffrey
Holmstead, nominated to be an Assistant
Administrator of the Environmental Protection Agency. The Senate
Committee on Environment and Public Works requested memoranda from
Holmstead’s years of service in the White
House counsel’s office under former President Bush. In particular,
the Committee was interested in materials related to
Holmstead’s handling of an amendment to
the Clean Air Act and other environmental issues. In the summer of
2001, the Bush Administration resolved an impasse with the Committee
over the nomination by permitting Committee staffers to review
memoranda that Holmstead wrote while in
the White House counsel's office. In sum, the Administration allowed
access to documents from the White House counsel's office -- a more
sensitive post than the one Mr. Estrada held when he was in the
Department of Justice.
In another situation, in
2001, this White House allowed Senator Lieberman and the Senate
Government Affairs Committee access to documents regarding
environmental rulemaking, although I would note that such access was
allowed only after Senator Lieberman threatened to subpoena the
information. Faced with this threat, the Bush Administration worked
to reach an accommodation, and allowed access to documents, including
documents that the Administration characterized as “high-level
deliberative documents,” as part of an oversight investigation of the
Bush Administration’s regulatory rollbacks.
So, despite this
Administration’s continued insistence on confidentiality, it has
turned over, allowed access or worked to reach an accommodation on
access to documents similar to those requested in connection with the
Estrada nomination in other cases and for other committees. And,
again, in the instance of the Estrada nomination, the matter before
the Senate concerns a lifetime appointment to the second-highest court
in the land.
Last Thursday, the former
Republican Leader accepted “part of the blame” for how the Senate has
come to consider judicial nominations. I appreciate that because it
is one of the few times a Republican Senator has accepted
responsibility for what happened during the years in which the
Republican majority in the Senate blocked and delayed so many of
President Clinton’s judicial nominees. The Senator from
Mississippi also
acknowledged that “you filibuster a lot of different ways.” I thank
the Senator from Mississippi for trying to be constructive and for
suggesting that “something can be worked out” on the request for Mr.
Estrada’s work papers from the Department of Justice.
In yesterday’s edition of
The Weekly Standard, a report suggests that other Senate Republicans,
“several veteran GOP Senate staffers” and “a top GOP leadership aide”
asked the White House to show some flexibility and to share the legal
memoranda with the Senate to resolve this matter, but they were
rebuffed. It is regrettable that the White House will not listen to
reason from Senate Democrats or Senate Republicans. If they had,
there would be no need for this cloture vote. The White House is less
interested in making progress on the Estrada nomination than in trying
to score political points and to divide the Hispanic community.
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 the office
that would shed the most light on his views. The White House says
that the Senate should not consider the very ideology the White House
took into account in selecting a 41‑year-old
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 the constitutional process 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.
One of the most
disconcerting aspects of the manner in which the Senate is approaching
these divisive judicial nominations is what appears to be the
Republican majority=s
willingness to sacrifice the constitutional authority of the Senate as
a check on the power of the President in the area of lifetime
appointments to our federal courts. It should concern all of us and
the American people that the Republican majority=s
efforts to re-write Senate history in order to rubber stamp this White
House=s
federal judicial nominees will cause long-term damage to this
institution, to our courts, to our constitutional form of government,
to the rights and protections of the American people and to
generations to come.
The White House is using
ideology to select its judicial nominees but is trying to prevent the
Senate from knowing the ideology of these nominees when it evaluates
them. It
was not so long ago when then-Senator Ashcroft was chairing a series
of Judiciary Committee hearings at which Edwin
Meese III testified:
“I think that very
extensive investigations of each nominee – and I don’t worry about the
delay that this might cause because, remember, those judges are going
to be on the bench for their professional lifetime, so they have got
plenty of time ahead once they are confirmed, and there is very little
opportunity to pull them out of those benches once they have been
confirmed – I think a careful investigation of the background of each
judge, including their writings, if they have previously been judges
or in public positions, the actions that they have taken, the
decisions that they have written, so that we can to the extent
possible eliminate people eliminate persons who would turn out to be
activist judges from being confirmed.”
Timothy E.
Flanigan, an official from the
administration of the President’s father, and who more recently served
as Deputy White House Counsel, helping the current President select
his judicial nominees, testified strongly in favor of “the need for
the Judiciary Committee and the full Senate to be extraordinarily
diligent in examining the judicial philosophy of potential nominees.”
He continued:
“In evaluating judicial
nominees, the Senate has often been stymied by its inability to obtain
evidence of a nominee’s judicial philosophy. In the absence of such
evidence, the Senate has often confirmed a nominee on the theory that
it could find no fault with the nominee.
“I would
reverse the presumption and place the burden squarely on the shoulders
of the judicial nominee to prove that he or she has a well-thought-out
judicial philosophy, one that recognizes the limited role for Federal
judges. Such a burden is appropriately borne by one seeking life
tenure to wield the awesome judicial power of the
United States.”
Now that the occupant of
the White House no longer is a popularly elected Democrat but a
Republican, these principles seem no longer to have any support within
the White House or the Senate Republican majority. Fortunately, our
constitutional principles and our Senate traditions, practices and
governing rules do not change with the political party that occupies
the White House or with a shift in majority in the Senate.
The White House, in
conjunction with the new Republican majority in the Senate, is
purposeful in choosing these battles over judicial nominations.
Dividing rather than uniting has become their modus operandi. The
decision by the Republican Senate majority to focus on controversial
nominations says much about their mistaken priorities. The Republican
majority sets the agenda and they schedule the debate, just as they
have again here today.
I have served in the
Senate for 29 years, and until recently I have never seen such
stridency on the part of an administration or such willingness on the
part of a Senate majority to cast aside tradition and upset the
balances embedded in our Constitution, in order to expand presidential
power. What I find unprecedented are the excesses that the Republican
majority and this White House are willing to indulge to override the
constitutional division of power over appointments and longstanding
Senate practices and history.
It strikes me that some Republicans seem to
think that they are writing on a blank slate and that they have been
given a blank check to pack the courts.
They show a disturbing
penchant for reading the Constitution to suit their purposes of the
moment rather than as it has functioned for more than 200 years to
protect all Americans through its checks and balances.
The Democratic Leader
pointed the way out of this impasse again in his letter to the
President on February 11. It is regrettable that the President did
not respond to that reasonable effort to resolve this matter. Indeed,
the letter he sent last week to Senator Frist
was not a response to Senator Daschle’s reasonable and realistic
approach, but a further effort to minimize the Senate’s role in this
process by proposing radical changes in Senate rules and practices to
the great benefit of this Administration.
A distinguished senior
Republican Senator saw the reasonableness of the suggestions that the
Democratic Leader and Assistant Leader have consistently made during
this debate when he agreed on February 14 that they pointed the way
out of the impasse. Regrettably, his efforts and judgment were also
rejected by the Administration.
The Supreme Court, in an
opinion authored last year by none other than Justice
Scalia, one of this President’s judicial
role models, instructs that judicial ethics do not prevent candidates
for judicial office or judicial nominees from sharing their judicial
philosophy and views.
With respect to
“precedent,” Republicans not only joined in the filibuster of the
nomination of Abe Fortas to be Chief
Justice of the United States Supreme Court, they joined in the
filibuster of Stephen Breyer to the 1st
Circuit, Judge Rosemary Barkett to the 11th
Circuit, Judge H. Lee Sarokin to the 3rd
Circuit, and Judge Richard Paez and Judge
Marsha Berzon to the 9th
Circuit. The truth is that filibusters on nominations and legislative
matters and extended debate on judicial nominations, including circuit
court nominations, have become more and more common through
Republicans’ own 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.
From 1995 through 2001, when Republicans previously controlled the
Senate majority, Republican efforts to defeat President Clinton=s
judicial nominees most often took place through inaction and anonymous
holds for which no Republican Senator could be held accountable. In
effect, these were anonymous “filibusters.”
Republicans held up almost
80 judicial nominees who were not acted upon during the Congress in
which President Clinton first nominated them, and they eventually
defeated more than 50 judicial nominees without a recorded Senate vote
of any kind, just by refusing to proceed with hearings and Committee
votes.
Beyond judicial nominees,
Republicans also filibustered the
nomination of Executive Branch nominees. They successfully
filibustered the nomination of Dr. Henry
Foster to become Surgeon General of the
United States in spite
of two cloture votes in 1995. Dr.
David Satcher=s
subsequent nomination to be Surgeon General also required cloture but
he was successfully confirmed.
Other Executive Branch
nominees who were filibustered by
Republicans include Walter Dellinger’s nomination to be Assistant
Attorney General, and two cloture petitions were required to be filed
and both were rejected by Republicans. In this case we were able
finally to obtain a confirmation vote after elaborate effort, and Mr.
Dellinger was confirmed to that position with 34 votes against him.
He was never confirmed to his position as Solicitor General because
Republicans had made clear their opposition to him.
In addition, in 1993, Republicans objected to a number of State
Department nominations and even the nomination of Janet Napolitano to
serve as the U.S. Attorney for Arizona, resulting in cloture
petitions.
In 1994, Republicans
successfully filibustered the nomination of
Sam Brown to be an Ambassador. After three cloture petitions were
filed, his nomination was returned to President Clinton without Senate
action. Also in 1994, two cloture petitions were required to get a
vote on the nomination of Derek Shearer to be an Ambassador. And it
likewise took two cloture petitions to get a vote on the nomination of
Ricki Tigert
to chair the FDIC. So when Republican Senators now talk about the
Senate Executive Calendar and presidential nominees, they must be
reminded that they recently filibustered
many, many qualified nominees.
Nonetheless, in spite of
all the intransigence of the White House and all of the doublespeak by
some of our colleagues on the other side of the aisle, I can report
that the Senate has moved forward to confirm 111 of President Bush=s
judicial nominations since July 2001. That total includes 11 judges
confirmed so far this year, and of those, seven were confirmed last
week. The Senate last Thursday moved forward on the controversial
nomination of Jay S. Bybee to the United
States Court of Appeals for the Ninth Circuit.
Those observing these
matters might contrast this progress with the start of the last
Congress in which the Republican majority in the Senate was delaying
consideration of President Clinton=s
judicial nominees. In 1999, the first hearing on a judicial nominee
was not until mid-June. The Senate did not reach 11 confirmations
until the end of July of that year. Accordingly, the facts show that
Democratic Senators are being extraordinarily cooperative with a
Senate majority and a White House that refuses to cooperate with us.
We have made progress in spite of that lack of comity and cooperation.
We worked hard to reduce
federal judicial vacancies to under 55,
which includes the 20 judgeships the Democratic-led Senate authorized
in the 21st Century Department of Justice Appropriations
Authorization Act last year. That is an extremely low vacancy number
based on recent history and well below the 67 vacancies that Senator
Hatch termed “full employment” on the federal bench during the Clinton
Administration.
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
seem to prefer political game playing, seeking to pack our courts with
ideologues and leveling baseless charges of bigotry, rather than 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
straightforward colloquy with Senator Reid and me on February 14,
which pointed to a solution, was never allowed by hard-liners on the
other side to yield results. 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
reasonably and fairly. Republicans would apparently rather engage in
politics.
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 a recent
column by Thomas Mann of The Brookings Institute, to submit
Aa
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.
The nomination and confirmation process begins with the President,
and I urge him to work with us to find a way forward to unite the
nation on these issues, instead of to divide the nation.
# # # # # |
