Statement Of Senator Patrick Leahy
On The Withdrawal Of The Nomination of Miguel Estrada
September 15, 2003
Last week the
President withdrew the nomination of Miguel Estrada to the U.S.
Court of Appeals for the District of Colombia Circuit. This was a
nomination for a lifetime appointment to the second-highest court in
the land. The Constitution accords the Senate the duty to make
informed judgments for these lifetime appointments to our federal
courts. Senators cannot make informed judgments if the White House
stonewalls the Senate.
This withdrawn
nomination is another example of the White House’s insistence on
dividing instead of uniting the American people over the President’s
decisions for the federal courts. Ultimately, the nomination was a
casualty of that divisive policy. For more than a year, the White
House has consistently spurned many private and public bipartisan
appeals to resolve this matter by working with the Senate to provide
access to requested information. Mr. Estrada’s work at the Justice
Department was at the core of the Administration’s claims for his
qualification to serve on this court. Despite the questions raised
about his work at the Justice Department and the ample precedents
from similar document requests involving earlier nominations, this
Administration decided to stonewall the Senate. This stonewalling,
combined with Mr. Estrada’s reluctance to answer substantively
Senators’ questions, prompted this impasse. The White House always
had the key to unlock this stalemate.
In the absence of
cooperation from the White House, and with the persistence of the
White House’s stonewalling, Mr. Estrada has concluded that this
impasse will continue. He is probably right, and he and his family
can now move on with their lives.
In the aftermath
of the announcement last Thursday, some Republican Members of the
Senate have come to the Senate floor and sought out the airwaves to
renew their offensive and untrue rhetoric about this nomination. I
must take a few moments to set the historical record straight.
First, some
Republicans have repeated their false assertion that Democrats
opposed Mr. Estrada’s nomination because of his ethnicity. That is
absurd. In the last Congress, Senate Democrats swiftly acted to
confirm six Latino judicial nominees -- Christina Armijo (NM), Judge
Phillip Martinez (TX), Randy Crane (TX), Judge Jose Martinez (FL),
Magistrate Judge Alia Ludlum (TX), and Jose Linares (NJ). During
this Congress, Democrats have unanimously supported the confirmation
of six other Latino judicial nominees -- Edward Prado (5th Circuit),
Consuelo Callahan (9th Circuit), S. James Otero (CA), Cecilia
Altonaga (FL), Xavier Rodriguez (TX), and Frank Rodriguez Montalvo
(TX). All of these nominees received the unanimous support of the
Senators in the Democratic caucus.
Moreover, it was
Democrats who worked to clear the nominations of Judge Prado and
Judge Callahan to the circuit courts over delays and initial
objections from the Republican side of the aisle. Yet some
Republican Senators assert that those who opposed Mr. Estrada’s
confirmation to the circuit court did so “because he’s Hispanic.”
That is obviously false, demeaning and divisive.
These partisans
may need to be reminded that Democrats supported the appointment of
11 Latinos nominated by President Clinton to the appellate courts.
It was Republicans who blocked three Latino circuit court nominees
of President Clinton. Those qualified and distinguished Latino
nominees were never given hearings by the Republican majority and
never allowed to come before the full Senate. They were not opposed
through debate and votes in the light of day; instead, their
nominations were filibustered and killed by delay, in the dark of
night, without any meaningful explanation of any substantive
concerns about their nominations. This all begs the rhetorical
question: Do the current Republican charges mean that Republicans
are anti-Hispanic for having blocked three Hispanic nominees to the
circuit courts and for having opposed, delayed and voted against
numerous others nominated by President Clinton? The facts are
clear and the facts are indisputable, and the facts belie the false
charges that we have heard from some on the other side of the aisle.
Republicans
blocked three Latino nominees of President Clinton to the appellate
courts from ever receiving a vote: Enrique Moreno, who was nominated
to the 5th Circuit; Jorge Rangel, who was nominated to
the 5th Circuit; and Christine Arguello, who President
Clinton nominated to the 10th Circuit. In addition,
Republicans refused to allow votes on three of President Clinton’s
Hispanic district court nominees, Ricardo Morado, R. Samuel Paz, and
Anabelle Rodriguez. Republicans did not allow a hearing or a vote
in the Judiciary Committee or on the floor in a cloture vote or
confirmation vote on any of these six Latino nominees. I ask
unanimous consent to insert into the Record a letter on this point
that I recently received from Judge Rangel, a well regarded nominee
of President Clinton who never received a confirmation vote from the
Republican majority at that time.
Republicans did
not just block those six Latino judicial nominees of President
Clinton from receiving votes, they also dragged their feet on the
confirmation of others who were left pending for a long time, often
without any public statements identifying the concerns that were
delaying those nominees, in contrast to Mr. Estrada’s nomination
which has been debated in the light of day. When they
unsuccessfully filibustered Judge Rosemary Barkett and Judge Richard
Paez, were they doing so because the nominees were Hispanic? When
they delayed and opposed the confirmation of Judge Sonia Sotomayor,
do recent Republican statements mean that they did so because she is
Hispanic?
Overall, during
President Clinton’s tenure, 10 of his more than 30 Hispanic nominees
were delayed or blocked from receiving hearings or votes by
Republican leaders. The Hispanic judicial nominees denied a vote by
Republicans are Moreno, Rangel, Arguello, Morado, Paz, and
Rodriguez. The four Hispanic judicial nominees delayed but
ultimately confirmed over Republican opposition are Judges Richard
Paez, a Mexican-American nominated to the 9th Circuit;
Judge Hilda Tagle, a Mexican-American nominated to the Texas
district court; Judge Rosemary Barkett, an immigrant from Mexico
nominated to the 11th Circuit; and Judge Sonia Sotomayor,
whose family hails from Puerto Rico. Of these 10, three waited more
than two years to receive a vote or were never accorded one.
Republicans delayed consideration of the nomination of Judge Richard
Paez for more than 1,500 days – yes, that is correct, more than
one-thousand five-hundred days – and then when he finally did get a
vote, 39 Republicans voted against his confirmation to the 9th
Circuit. He was unsuccessfully filibustered by Republicans.
Senator Sessions moved to indefinitely postpone the vote after we
overcame the Republican filibuster, after Judge Paez had been
waiting for more than four years, and 31 Republicans voted with
Senator Sessions on that motion after their filibuster failed. Of
course, now Republicans have the temerity to assert that it is
unprecedented to filibuster a circuit court nomination. What short
memories they must believe the American people have. I discussed
this in more detail in the Congressional Record of February 10,
2003.
The nomination of
Judge Hilda Tagle to a District Court seat in Texas was pending
before the Senate for 943 days, before Republicans finally allowed
her a vote on the floor of the Senate. After failing to defeat her
nomination through anonymous delay, not a single Republican
explained the delay. Republican delays such as these on Clinton
nominees are discussed in more detail in my statements published in
the Congressional Record on May 1, 2003, as well as in statements
about Mr. Estrada’s nomination by Senator Reid, Senator Kennedy,
Senator Schumer and others.
I hope these
facts will finally put to rest the untruths that have been
manufactured and perpetrated to attack those who opposed the
confirmation of Miguel Estrada. For Republicans to claim that those
who opposed the Estrada nomination were motivated by anti-Hispanic
sentiment is wrong. It is offensive, base and baseless. Indeed, I
have spoken about the extensive opposition to the Estrada nomination
from Hispanic leaders and organizations. That opposition of Latino
leaders from around the country who opposed the Estrada nomination
included our colleagues in the Congressional Hispanic Caucus (CHC).
According to the CHC scorecard, Mr. Estrada failed most of the
factors for their evaluation of judicial nominees. Furthermore, Mr.
Estrada told members of the Caucus:
“[H]e has never
provided any pro bono legal expertise to the Latino community or
organizations. Nor has he ever joined, supported, volunteered for
or participated in events of any organizations. Nor has he ever
joined, supported, volunteered for or participated in events of any
organization dedicated to serving and advancing the Latino
community. As an attorney working in government and the private
sector, he has never made efforts to open doors of opportunity to
Latino law students or junior lawyers . . . [and] he never appealed
to his superiors about the importance of making such efforts on
behalf of Latinos.”
These are just a
few of the concerns raised by the Members of the CHC, which are
detailed in several statements I have made, including my statements
in the Congressional Record on February 5, 2003; February 10, 2003;
February 24, 2003; February 25, 2003; as well as on July 30, 2003.
Mr.
Estrada was also opposed by the Puerto Rican Legal Defense and
Education Fund (PRLDEF), a national civil rights organization
concerned with advancing the civil and human rights of the Latino
community. After interviewing Mr. Estrada, like the CHC, and also
reviewing his public record and his reputation, PRLDEF concluded
that Mr. Estrada was not sufficiently qualified for a lifetime seat
on the nation=s
second highest court and that, among other concerns about his poor
temperament for the job, “he has not had a demonstrated interest in
or any involvement with the organized Hispanic community or Hispanic
activities of any kind.” Their letter was included in the
Congressional Record and discussed on the dates I just noted. I
also included for the Congressional Record, the serious concerns
raised by the Mexican American Legal Defense and Education Fund (MALDEF)
and California La Raza Lawyers (CLRL), which also opposed Mr.
Estrada’s confirmation. They wrote:
“[I]t
is unclear whether he would be fair to Latino plaintiffs as well as
others... we found evidence that suggests he may not serve as a fair
and impartial jurist on allegations brought before him in the areas
of racial profiling, immigration, and abusive or improper police
practices where those practices are adopted under a ‘broken window
theory’ of law enforcement...We have concerns about whether he would
fairly review standing issues for organizations representing
minority interests, affirmative action programs or claims by
low-income consumers. We are also unsure, after a careful view of
his record, whether he would fairly protect labor rights of
immigrant workers or the rights of minority voters under the Voting
Rights Act.”
In the
Congressional Record of February 24, 2003, I also included the
announcements of the opposition to this nomination by most of the
past Presidents of the Hispanic National Bar Association.
In the
face of the facts about our confirmation of a dozen Hispanic
candidates nominated by President Bush to the circuit or district
courts and the breadth and depth of the opposition of most of the
Latino civil rights groups, it is astonishing that Republicans
continue to assert that those who oppose Mr. Estrada’s confirmation
are anti-Hispanic. That is such an outright and obvious untruth.
Yet we see some of these untruths recycled again and again in news
reports and commentaries, despite the facts. These baseless
allegations for purposes of wedge politics and partisan advantage
are wrong and dangerous.
The facts are
that of the 12 Latino appellate judges currently seated on the
federal courts, eight were appointed by President Clinton and two
(Judges Prado and Callahan) were nominated by President Bush and
confirmed with unanimous Democratic support. I discussed the
problems with the Estrada nomination in contrast to the nominations
of Judge Prado and Judge Callahan in the Congressional Record of
April 28, 2003 and May 22, 2003, respectively, as well as in
contrast to less controversial district court nominees on March 27,
2003, March 31, 2003, and May 6, 2003.
I have
included in the record almost seven dozen editorials or commentaries
in opposition to the Estrada nomination or in support of the
Democratic filibuster. Those editorials were mentioned in the
Congressional Record on March 6, 2003, and April 2, 2003. At the
end of my remarks today, I will include excerpts from additional
editorials and op-ed columns in opposition to the Estrada nomination
or in support of the Democratic filibuster of this nomination. In
particular, I note the editorial of The New York Times this week
entitled, “Straight Talk on Judicial Nominees,” and I ask unanimous
consent that it be printed in the Congressional Record. [INSERT]
On the
issue of the history of the use of filibusters in connection with
nominations, some Republicans would now have the public believe that
a filibuster of a nominee is, in their words, “unprecedented.” This
is another deception. As some of these same Republicans well know,
they filibustered the nominations of Judge Paez and Judge Berzon on
the floor of the Senate in 1999 and 2000, as they conceded at that
time. By way of example, I note that several Republicans currently
serving voted against cloture, the motion to close debate,
after the Paez nomination had been pending before the Senate for
more than four years. I have already noted that even after
losing the cloture vote, Republicans led
by Senator Sessions moved to indefinitely postpone a vote on Judge
Paez’s nomination, and a number of Republican Senators currently
serving voted to continue to block action on the Paez nomination in
2000. Yet some Republican Senators now claim that it is
unprecedented to filibuster or deny a circuit court nominee an up or
down confirmation vote on the Senate floor.
Their filibuster of Judge Paez’s
nomination is just one example of Republican filibusters of
Democratic nominees. Others include Dr. David Satcher to be Surgeon
General in 1998; Dr. Henry Foster to be Surgeon General in 1995;
Judge H. Lee Sarokin to the Third Circuit in 1994; Ricki Tigert to
the Federal Deposit Insurance Corporation in 1994; Derek Shearer to
be an Ambassador in 1994; Sam Brown to an ambassador-level position
in 1994; Rosemary Barkett (born in Mexico), nominated to the 11th
Circuit, 1994; Larry Lawrence, to be ambassador in 1994; Janet
Napolitano at the Justice Department in 1993; and Walter Dellinger
to be Assistant Attorney General for the Office of Legal Counsel at
the Justice Department in 1993.
The nominations of Dr. Foster and Mr.
Brown were successfully filibustered on the Senate floor by
Republicans. Similarly, the nomination of Abe Fortas by President
Lyndon B. Johnson to the Supreme Court of the United States was
successfully filibustered by Republicans with help from some
southern Democrats.
In addition, to the short-term and
life-time appointees of Democrats whose nominations were subject to
sometimes fatal delay on the floor, Republicans made an art form of
killing nominations in Committee so that they would never have a
vote on the floor. According to the public record, more than 60 of
President Clinton’s judicial nominees were defeated by willful
refusal to allow them a vote and more than 200 Executive Branch
nominees of President Clinton met the same fate (including several
Latinos), with their nominations nixed in the dark of night without
any accountability. They were filibustered and never allowed a vote
on the Senate floor. I discussed this history in more detail on
February 26, 2003, in the Congressional Record.
In
addition, in the Congressional Record on March 5, 2003, March 11,
2003, and March 13, 2003, I summarized the history of filibusters of
nominees. I also spoke on May 19, 2003, about the history of Senate
debate and the constitutionality of Rule XXII of the Senate rules.
The fact of the matter is that many nominees have been blocked from
receiving votes throughout the Senate’s history. For example, 25
Supreme Court nominees were not confirmed in the history of our
Nation. Eleven of those nominations were defeated by delay, not by
confirmation votes on the Senate floor, including the nomination of
Justice Fortas. Since the early 19th Century, nominees
for the highest court and to the lowest short-term post have been
defeated by delay, while others were voted down. Not even all of
President Washington’s nominees were confirmed or those of other
presidents, often for political or ideological reasons.
Filibusters and other parliamentary tactics to delay matters
were known to the Framers. There was even a filibuster in the first
Congress over locating the capital.
The
plain truth is that Democrats opposed the nomination of Mr. Estrada
to the D.C. Circuit based on serious and legitimate concerns
regarding the stonewalling of the Senate by this White House and
this nominee. The
D.C. Circuit is the nation’s second most important court, because it
has exclusive or special jurisdiction over a broad array of
far-reaching federal regulations, such as the rights to safe
workplaces, fair employment practices, clean air and water, and
other important laws -- areas with which Mr. Estrada had very little
experience.
Republicans lean heavily on the rating of the ABA, a group that
Republicans helped oust from the pre-nomination process and a group
which ever since then has sometimes seemed overly eager to get back
into their good graces. Yet, as Senator Reid noted in the
Congressional Record in February and March of this year, there were
certainly irregularities in the rating given to this nominee by the
American Bar Association, with the person who recommended a Well
Qualified rating working closely with the Bush Administration on
high-level appointments and co-founding the Committee for Justice to
run attack ads against Democrats, while still serving on the ABA
rating committee. Other nominees with similar records did not
receive the high rating Mr. Estrada did, in this or past
administrations. In fact, people with similar records received
partial Not Qualified ratings, when the process was conducted more
fairly and with more candor, and when the candidate did not already
have the imprimatur of the President through his nomination.
I would also note that before the hearing on
the Estrada nomination, Federalist Society insiders gave a special
seminar on how to get through the confirmation process and urged
President Bush’s judicial nominees to say as little as possible. Mr.
Estrada appears to have followed those marching orders to a “T” and
to his own detriment. During the hearing on his nomination he often
refused to answer questions or provided evasive answers. He
declined to share his views on important Supreme Court cases and his
judicial philosophy. For example, Senator Schumer asked Mr. Estrada
to name a single case from the entire history of Supreme Court law
that he disagreed with, Mr. Estrada refused. He claimed he could
not comment on any case if he had not read the briefs, listened to
oral argument, done independent research and conferred with
colleagues.
Most who knew Mr. Estrada personally seemed to
agree that he was actually a very opinionated person. He admitted
in his testimony that he could be “ruthless” in his criticism of
legal and political opinions. Yet, before the Senate Judiciary
Committee, he would not describe those views and claimed to have no
views he could or would share with the only people entrusted with
reviewing his record and recommending his nomination for a lifetime
job on the federal bench.
Then Republicans even tried to assert that it
would be unethical for Mr. Estrada to answer questions by Senators.
However, the Supreme Court held in 2001 that it does not violate
judicial ethics for judicial candidates to comment on legal issues,
as long as they do not promise how they will rule. Ironically it
was the Republican Party that had sued the State of Minnesota to
ensure that their candidates for judicial office could give their
views on legal issues without violating judicial ethics (the state
counterpart to the ABA model rule). Republicans took the case all
the way to the Supreme Court and won. In an opinion by Justice
Scalia, the Supreme Court ruled that the ethics code did not
prevent candidates for judicial office from expressing their
views on cases or legal issues. Justice Scalia said that anyone
coming to a judgeship is bound to have opinions about legal issues
and the law, and there is nothing improper about expressing them.
Specifically, in Republican Party of Minnesota v. White, 122
S. Ct. 2528 (2002), the Supreme Court overruled ABA modeled
restrictions against candidates for judicial office from expressing
their views on legal issues while seeking judicial office. Justice
Scalia explained in that majority opinion:
AEven 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.=.
. . And since avoiding judicial
preconceptions on legal issues is neither possible nor desirable,
pretending otherwise by
attempting to preserve the
>appearance=
of that type of impartiality can hardly be a
compelling state interest either.@
Id. at 2536 (quoting Justice Rehnquist=s
opinion in
Laird v. Tatum, 409 U.S. 824 (1972)).
Judicial ethical rules do not prevent Senators from learning about a
judicial candidate=s
views. Senators are trying to evaluate whether a nominee should be
given a lifetime position, and the Senate hearing room should not be
the only place where a judicial candidate cannot or will not discuss
his views of the law and his opinions.
Especially problematic was the stand taken by the Administration on
the Senate’s request to examine the memoranda written by Mr. Estrada
at the Justice Department. Because
Mr.
Estrada has no record and because his impartiality was called into
question by one of his direct supervisors at the Justice Department,
these memoranda would have provided important insights into Mr.
Estrada’s approach to issues involving individual rights and the
weight of precedent. I discussed the precedent for this request in
my remarks reprinted in the Congressional Record of February 5,
2003; February 12, 2003; February 13, 2003; March 5, 2003; March 18,
2003; and May 8, 2003. Senator Durbin and Senator Kennedy also
addressed this issue at length in their remarks. History makes
clear that internal legal memos were requested and provided to the
Senate in connection with, among others, the nominations of Robert
Bork to the Supreme Court, Brad Reynolds to be Associate Attorney
General, William Rehnquist to the Supreme Court, Stephen Trott to
the Ninth Circuit, and Ben Civiletti to be Attorney General. In
each of these appointments, internal legal memos to or from the
nominees were requested and provided to the Senate.
Basically, the Bush Administration’s response
to our request has been contemptuous from the beginning. The
initial response of the Justice Department was that the request was
unprecedented. That is abundantly inaccurate. This administration
has itself shared White House Counsel records in connection with a
nomination. There
is simply no legal or historical basis for denying the Senate access
to the memoranda requested here. The historical precedent for the
Senate’s request actually supports it. Scores of legal memos to and
from Robert Bork when he was Solicitor General were provided to the
Senate during his judicial nomination. Walter Dellinger himself
advised the Senate during Justice Rehnquist’s judicial nomination
when he reviewed memos provided to the Senate by the Justice
Department which were written by and to Rehnquist when he was the
head of the Office of Legal Counsel. Indeed, the long-standing
policy of the Justice Department, prior to this administration,
regarding Congressional requests for memos and other non-public
information was a “policy of accommodation.” Former administrations
cooperated with countless requests for internal documents sought by
Members of Congress as well as more recently by Kenneth Starr, who
sought and obtained documents containing the advice of the
President’s attorneys and closest advisors.
The
Administration also objected that some other Justice Department
attorneys who have been nominated to other positions were not the
subject of memo requests. However, they fail to acknowledge that
those nominees were not the subject of allegations by their
supervisor of many years that they could not keep their ideological
views out of their memos and their work for the Department, unlike
Miguel Estrada. The fact that the Senate does not always request
such memos does not diminish its power to do so and the precedent to
request such documents when Senators believe it is important to
examine them. Indeed, the Senate would be abdicating its
responsibilities to serve as a check on nominations if it had
ignored the serious concerns raised about Mr. Estrada’s writings
before giving him a lifetime appointment as a judge with immense
power over the lives of all Americans. Mr. Estrada told the Senate
that he was proud of his writings and that he did not object to
their being shared with the Senate but the administration refused
every attempt at compromise. Additionally, as Republicans readily
admitted when a Democrat was in the White House, it has been the
long-standing practice of the Senate not to recognize
attorney-client, work-product, or deliberative process privilege
claims.
As for the generic claim that people working
for the federal government in the Solicitor General’s office would
be chilled from candidly expressing their views, it seems unlikely
that Mr. Estrada was chilled by the revelation of legal memoranda
during the Bork, Rehnquist, Trott and Reynolds nominations in the
few years before he joined the Solicitor General’s office. Indeed,
as the Supreme Court noted in the Nixon tapes case, it is quite
unlikely “that advisors will be moved to temper the candor of
their remarks by the infrequent occasions of disclosure.” U.S. v.
Nixon, 418 U.S. 683 at 712 (1974). Thus, while the desire for
candor in the Executive Branch may be strong, it is not an absolute
right against disclosure in response to requests from a co-equal
branch pursuant to its express powers under the Constitution.
In my previous statements on the floor of the
Senate about the document request, I have put into the record
numerous examples of legal memos provided to the Senate by other
administrations, so I will not list them again. I will only say
that it is clear to me and other Senators who have examined the
record or remember the history that past requests of the Senate for
legal memos from the Justice Department were honored, that many of
these memos involved decisions about appealing cases or other
significant legal or policy issues, that these memos were written by
line attorneys to the Solicitor General as well as by the Solicitor
General or Assistant Attorney General, that some memos were provided
on a confidential basis while others were made public and placed in
hearing records and other congressional documents, and that all
these claims about this request being unprecedented are just so much
false rhetoric. Congress was not required to stumble in the dark in
connection with other nominations where memos were sought, and I am
glad that the Senate did not cave in here, despite all of the
attacks, intimidation and false claims the Bush Administration and
its allies have made.
In sum,
this administration treated the concerns of members of this co-equal
branch with contempt at nearly every turn. As I stated at the
outset of this debate, I would have welcomed a record on which I
could have had strong confidence about the type of judge Mr. Estrada
would be. Senators were denied adequate information to make an
informed judgment about whether to entrust this nominee with the
powerful position to which he was nominated. As I mentioned in the
Congressional Record of July 30, 2003, it is regrettable that this
Administration did not choose to cooperate and act in good faith in
this nomination and instead sought to use this nominee as a pawn in
its high stakes game of wedge politics. I am certain that this
process must have been a difficult one for Mr. Estrada and his
family. It is too bad that White House and Justice Department
advisors did not follow the approach they took with another Bush
nominee, Jeffrey Holmstead who was nominated to the EPA, and whose
White House Counsel’s Office memos this very administration shared
with the Senate in order to accommodate the concerns of Senators.
Instead, the Administration ignored precedent and common sense in
stonewalling the Senate, ignored the suggestions of compromise by
Republican and Democratic Senators, and chose the path and the
tactics of unilateralism.
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