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Statement Of Senator Patrick
Leahy On The Cloture Vote
On The Nomination Of Miguel Estrada
May 5, 2003
Today the Republican leadership in the Senate is
forcing what may be the fifth vote on a cloture petition on this
divisive and controversial nomination. None of these petitions would
have been needed if the Administration had cooperated with the Senate
as have prior administrations, Democratic and Republican. Nothing has
changed from the last cloture vote. No effort has been forthcoming by
the Administration to accommodate Senators’ requests for access to the
Executive Branch documents requested last May, almost one year ago.
The White House continues to obstruct any progress toward resolving
this matter by its unprecedented refusal to turn over documents
requested to determine whether or not Miguel Estrada should sit on the
second highest court in the land, for life. Mr. Estrada’s nomination
is apparently being sacrificed by the Administration for its own
partisan, political purposes.
I do want to thank the Democratic leadership in
the Senate for working with us and helping press for a vote on the
nomination of Judge Edward Prado to the Fifth Circuit last week. We
had been seeking that vote for several weeks, since his nomination was
favorably reported with the support of every Democratic member of the
Judiciary Committee. Last Thursday, the Republican leadership at last
agreed to schedule that nomination for Senate consideration. Judge
Prado’s nomination was confirmed 97 to zero. This nomination is
another example of how quickly the Senate is able to proceed on
consensus, mainstream nominees. Judge Prado has 19 years of
experience as a U.S. District Court judge. Our review of his actions
on the bench showed him to have a solid record of fairness and
evenhandedness. No supervisor or colleague of Judge Prado has
questioned his willingness to interpret the law fairly. Judge Prado
enjoyed the full support of the Congressional Hispanic Caucus and the
Mexican American Legal Defense and Education Fund. Not a single
person or organization submitted a letter of opposition or raised
concerns about Judge Prado.
Judge Prado is now the second nominee of this
President to be confirmed by the Senate to the Fifth Circuit after
years during which President Clinton’s nominees were denied hearings
and consideration by a Republican Senate majority. Although
Republicans had refused to proceed on three of President Clinton’s
nominees to that court — two from Texas and one from Louisiana —
during his entire second term, Democrats proceeded with hearings and
Committee votes on all three of President Bush’s nominees. Judge
Prado is the fourth nominee of this administration to receive a
hearing and consideration.
Still stalled on the Senate Executive Calendar is
the nomination of Judge Cecilia Altonaga to be a federal judge in
Florida. Senator Graham requested that the Judiciary Committee
expedite the consideration of her nomination, and we did. All
Democratic members of the Judiciary Committee supported this
nomination. She will be the first Cuban-American woman to be
confirmed to the federal bench, whenever the Republican majority is
willing to proceed on her nomination. In my view, the Senate’s time
would be better spent this evening in a vote on this nomination than
another unsuccessful cloture vote on the Estrada nomination.
Unfortunately, that is not how the Republican leadership has chosen to
proceed.
The Administration remains intent on packing the
federal Circuit Courts and on insisting that the Senate rubber stamp
its nominees without fulfilling this body’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. In my
statement in connection with an earlier cloture petition, I outlined
additional precedent for sharing the requested materials with the
Senate, as did Senator Kennedy. I am disappointed that the White
House refuses to end this problem and, instead, continues to
politicize the process.
We understand that the President’s nominees will
be Republicans. We understand they will be conservative. We
understand that they will have positions with which we disagree. I
have voted for hundreds of nominees who were conservative
Republicans.
In just the last two years 121 of the President’s
judicial nominees have been confirmed. One hundred of those
confirmations came during the 17 months of Democratic leadership of
the Senate. No fair-minded observer could term that obstructionism.
By contrast, during the six and one-half years during which
Republicans controlled the Senate and President Clinton’s nominations
were being considered, they averaged only 38 confirmations a year.
During the last two years of the Clinton administration, the Senate
confirmed only 73 federal judges — the Senate confirmed 72 judges
nominated by President Bush last year alone. Combining the 1996 and
1997 sessions, Republicans in the Senate allowed only 53 judges to be
confirmed in two years, including only seven new judges to the Circuit
Courts.
It is a shame that the White House refuses to
work together with us to do even more to help the federal judiciary.
This week, we have already had a debate and vote on yet another
controversial Circuit Court nominee, Deborah Cook for the Sixth
Circuit, and now a cloture vote on the nomination of Miguel Estrada.
The fact is that when Democrats became the Senate
majority in the summer of 2001, when we inherited 110 judicial
vacancies, there was a dire need to fill judicial vacancies. Over the
next 17 months, despite constant criticism from the Administration,
the Senate proceeded to confirm 100 of President Bush=s
nominees, including several who were divisive and controversial,
several who had mixed peer review ratings from the ABA, and at least
one who had been rated not qualified. Despite the additional 40
vacancies that arose, we reduced judicial vacancies to 60, a level
below that termed Afull
employment@ by
Senator Hatch. Since the beginning of this year, in spite of the
fixation of the Republican majority on the President=s
most controversial nominations, we have worked hard to reduce judicial
vacancies even further. As of today, the number of judicial vacancies
is at 49. That is the lowest it has been in seven years. That is
lower than at any time during the entire eight years of the Clinton
Administration. We have already reduced judicial vacancies from 110
to 49, in less than two years. We have reduced the vacancy rate from
12.8 percent to 5.7 percent, the lowest it has been in the last two
decades. With some cooperation from this administration, think of the
additional progress we could be making.
While the nation’s unemployment rate rose last
month to 6 percent, the vacancy rate on the federal judiciary dipped
to 5.7 percent. While the number of private sector jobs lost since
the beginning of the Bush Administration is 2.7 million, almost 9
million Americans are now out of work, and unemployment has risen by
more than 45 percent, Democrats in the Senate have cooperated in
moving forward to confirm 121 of this President’s judicial nominees,
to reduce judicial vacancies to the lowest level than a decade, and to
reduce federal judicial vacancies by almost 60 percent. Yet the
Republican-led Senate remains obsessed with seeking to force through
the most divisive of this President’s controversial,
ideologically-chosen nominees.
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 on
the Estrada nomination. 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
partisan politics.
Republican talking points will undoubtedly claim
that this is “unprecedented.” They will ignore their own recent
filibusters against President Clinton’s executive and judicial
nominees in so doing. The only thing unprecedented about this matter
is that the Administration and Republican leadership have shown no
willingness to be reasonable and accommodate Democratic Senators’
request for information traditionally shared with the Senate by past
administrations. That this is the fifth cloture vote on this matter
is an indictment of Republican intransigence on this matter, nothing
more. What is unprecedented is that there has been no effort on the
Republican side to work this matter out as these matters have always
been worked out in the past. What is unprecedented is the Republican
insistence to schedule cloture vote after cloture vote without first
resolving the underlying problem caused by the administration’s
inflexibility.
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 today’s New York Times
editorial: “The answer is not to try to twist the rules or demonize
Democrats. It is for the White House to consult with the Senate and
agree on nominees that senators from both parties can in good
conscience confirm.”
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, instead of divide, the Nation as well as the Senate
on these issues.
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