Nomination of Miguel Estrada

Mr. SANTORUM. Mr. President, I compliment the Senator from Kentucky for his excellent remarks. He said much of what I wanted to say, outlining the extraordinary qualifications of Miguel Estrada. He very clearly laid out the case that there is no legitimate reason to filibuster his nomination, but that appears to be the tactic that is being contemplated and maybe even being engaged in by many on the other side of the aisle, certainly not all on the other side of the aisle. We are certainly grateful for Members who are discerning enough to understand, as has been quoted many times—the Washington Post has suggested that filibustering this nomination would be unjustifiable, I think is their term, and certainly beneath the standards in the Senate. The standard is that we do not filibuster judges for the circuit courts, that it would be an unprecedented move to filibuster a judge.

In the 220-odd-year history of the Senate, what makes this judge so unique? And that is what it would be, it would be unique because it is the first time in the history of this country a filibuster would be conducted on a circuit court nominee.

What makes this nominee so unique to warrant—and I am not using this term in a pejorative sense but in a factual context—an extreme reaction, extreme by the definition that it is the first time in almost 230 years of American history that this would occur, that this would be an extreme reaction because it has never been done before.

What has this nominee done, or what about this nominee causes such an overreaction, or extreme reaction, that raises the bar to this high level?

Let's look at this nominee. The Senator from Kentucky noted he is intellectually clearly qualified. He got into colleges I was not able to get into, I can say that. As the Senator from Kentucky said, he is a man who was raised in Honduras. English was not his first language. He was able to perform at the highest levels at some of the most rigorous universities in the country, Columbia and then Harvard Law School. He was on Law Review, it is my understanding, at Harvard Law School. These are truly lofty attainments and a demonstration of not only a powerful intellect but a rigorous attitude toward his studies and a commitment to excellence.

He clerked for the appellate court, which is a high honor very rarely bestowed upon graduates of law school, and even a more rare honor is to clerk for a Supreme Court Justice. He obviously has the intellectual capability, even at a young age; that was established. He has gone on with a distinguished career in law, public service, and in the private sector. He has argued numerous cases before the Supreme Court, which, frankly, standing up before a panel of Supreme Court Justices is hard enough but, in all candor, standing up when you have a speech impediment has to be a thoroughly paralyzing experience. To have the courage to persuasively make arguments, nonetheless, and deal with the bench under this context is a testament not only to his intellectual capability and to the hard work he puts into his job but to the personal courage and determination this man has.

So we have in this nominee someone who has overcome adversity in language, adversity in disability, and performed at the highest levels of the legal profession in this country.

As the Senator from Kentucky mentioned, he has a unanimous well-qualified rating. I am sure this has been repeated many times, but the other side has said this is the gold standard, this is the stamp of approval, getting a qualified rating from the American Bar Association.

This was not a qualified rating. This was not a well-qualified rating. This was a unanimously well-qualified rating.

So what is it? What could it possibly be that this nominee has done in his life to potentially warrant the first ever filibuster of a circuit court judge in the history of the Senate? What has he done? What are the arguments on the other side?

One of the arguments on the other side is he does not have sufficient experience. Well, I am a lawyer, and I can say I do not have near the experience Miguel Estrada has. I have not performed nearly in the arena of the law he has. His experience is abundant.

He has never been a judge. He is being nominated for a position on a court where there are eight judges right now. Five of the eight confirmed by this Senate had no prior judicial experience. So if judicial experience was so important for this court, then why do over half the members on this court have no prior judicial experience? One could make that argument, but the cup the water is being held in is as empty as the top. It flows straight through. It does not hold any water.

He has refused to disclose his judicial philosophy. Since when do we expect people who are applying for judicial nominations to tell us how they would rule on future cases? That would truly be an extreme view, an unprecedented view, for the consideration of judges in the Senate. We do not require people to prejudge cases. In fact, part of the canons is one does not prejudge cases. So to ask a judge-nominee how he would rule or what his feeling is on these matters is inappropriate and that is why most judges, if not—well, maybe some give opinions, but most nominees who come before the Senate for confirmation do not answer that question. They can talk general judicial philosophy, but to go through and talk about how they would rule on certain cases is something that is an inappropriate question, in my mind, and should not be answered.

The other side is saying he did not turn over his work papers. Now, I did practice a little bit of law, and there is a privileged work product of lawyers that is not available to the other side in a case. Generally speaking, it is not available for discovery.

Why? Because when you are working on a case—having worked in my capacity for a senior partner in most cases, as is the case here, because Miguel Estrada was an Assistant Solicitor; he was not the Solicitor General; he was working for someone in the capacity of the Solicitor's office—you are preparing the case and trying to share his opinions, his candid opinions about what his boss should do.

His boss may make a different decision, but his boss needs, as my senior partner needed, my candid opinion about what I thought of the merits of our argument or the facts in the case or whatever the case may be. He needed my candid assessment. Why? Because I understood the issue better than he or she did. That work product was essential for coming to the decisionmaking with all the best information that decisionmaker needed to make the property assessment of the case and to move forward.

Mr. BENNETT. Will the Senator yield?

Mr. SANTORUM. I am happy to yield.

Mr. BENNETT. It is my understanding that Mr. Estrada was employed during the Reno Justice Department; is that the Senator's understanding?

Mr. SANTORUM. That is correct.

Mr. BENNETT. Is it not then the case that some of these papers the committee is demanding are papers that were submitted to a Clinton Presidential appointee who acted as Solicitor General; is that not the case?

Mr. SANTORUM. That is correct.

Mr. BENNETT. So is it not true that it is a Clinton appointee, former Solicitor General, who is now saying it would be inappropriate for Mr. Estrada's material to be made public?

Mr. SANTORUM. That is correct, including, I believe, six other Solicitor Generals who have said it would threaten the viability of the Solicitor General's office if this information were discoverable through this nomination process.

Mr. BENNETT. If I could comment on the question, I find it interesting for those who supported Janet Reno for Attorney General and supported President Clinton's Presidential nominees in that office, which nominees, after confirmed, are saying Estrada's notes should not be made public, are saying those nominees are wrong.

Mr. SANTORUM. I find that incongruous. I find, frankly, all of the arguments to be specious, at best.

What is confounding is that such an extreme measure appears to be in the offing, which is a filibuster, on such a pathetically weak case against this nominee.

So one has to step back and ask, Why? What is going on here? Why is this nominee being singled out? What is it about this nominee that is unusual, that has raised the fear or the ire of so many in this Chamber?

Mr. BENNETT. Will the Senator yield?

Mr. SANTORUM. I am happy to yield.

Mr. BENNETT. I recall in the last Congress where the Democratic members of the Judiciary Committee, and particularly the Democratic leader, then majority leader, along with the then-chairman of that committee, Senator Leahy, attacked Republicans for being insufficiently supportive of nominees who were women or members of minorities. We were given quotas, if you will, at least the language of quotas, that we should have so many women and so many minorities, and we were attacked in the strongest possible language. Indeed, it came close to violating Senate rules, of implying that everyone on this side of the aisle was either sexist or racist because we did not support a sufficient number of minority nominees or female nominees.

Mr. SANTORUM. I suggest it went further. We were accused, if we voted against any minority—they would single out any negative vote against any minority member—it was the equivalent of having some sort of antiracial agenda; that somehow we harbored ill feelings toward whatever particular race or gender happened to be the subject of that nominee.

Mr. BENNETT. The Senator's memory is correct. We were told if we voted against any nominee who happens to be either a woman or a minority, we were, indeed, guilty.

Now we have one who happens to be a minority. I do not believe nominations should be made on the basis of gender or minority status. But when we have a nominee based on quality, who happens to be in a minority status, I find it disingenuous of those who made the point of the minority status. We didn't; they did. Those who made the point of the minority status now are insisting that the minority status should not be considered. I wish they would be consistent. Either minority status does not matter or it does, and if it does, as they insist, it should be a reason for them to vote for this nominee.

Mr. SANTORUM. I stand here, as the Senator from Kentucky and the Senator from Utah, and ask the question, Why this nominee? The Senator may have—I hope he has not—may have uncovered what may be the underlying cause of this obstruction. We have passed and considered judges who, through their nominating process, have disclosed their conservative ideology equal to Miguel Estrada. It is accepted that Miguel Estrada is conservative in answering his questions and how he interprets the law. It seems to be consistent with, frankly, most if not all of President Bush's nominees. President Bush believes in commonsense judges who take the Constitution for what it says and who follow the law.

As Miguel Estrada has said in his testimony, he would follow the law. The Supreme Court says this is the law; he will follow the law. That is all this President wants. That is all most Members, certainly on our side, would like to see—which is, judges who are not Supreme Court Judges now, because they are making more law than following law—judges on the district court and appellate courts and their responsibility to follow the higher court. Miguel Estrada said, without question, he will do so.

It is not that he will not follow precedent. The objection must be philosophy. If it is philosophy, look at all the nominees of this President. They are overwhelmingly almost universally more conservative than they are liberal. I don't know how you measure conservatism, but certainly they are almost all generally right around where Miguel Estrada is as far as his philosophy is concerned of government and of jurisprudence. Yet none of them have been filibustered on the floor of the Senate.

So, again, you come back: What is different about Miguel Estrada than all the other conservative district court judges, appellate court judges, who have been confirmed by the Senate? They have been given a vote. I won't even go to confirmed. They have just been given the opportunity for a vote.

I can speak from personal experience, one I know very well. We had probably the most contentious nominee to hit the floor the last session of Congress, a judge from Pennsylvania, Judge Brooks Smith. He was from the western district of Pennsylvania. Judge Brooks Smith is a conservative judge, very much in the mainstream of ideology on the court and America. But he tracks more conservatively in his opinions than those more activist in nature, or more liberal.

Did they oppose him on that? No, they found a few issues having to do with him being involved with a club, years ago, that excluded women. So they began to make this case that he was antiwoman. So that was the reason for this whole thing, even though we had the local chapter of NOW in his own county come out and suggest this is a good guy. It didn't matter. They had a hook. So they stuck the hook in. But they gave him a vote. They reported him out of committee and we gave him a vote on the Senate floor and he passed with 60-plus votes here on the floor of the Senate.

I know Judge Smith well and have tremendous respect for him. But I suggest Judge Smith and Miguel Estrada, when it comes to judicial philosophy, are pretty much two peas in a pod. It's pretty hard to tell the difference between how they would approach the issues. Judge Smith got a vote, even though, arguably—even though I think it was a red herring—he had some other issue out there that could have been used to discolor or discredit him.

What issue does Miguel Estrada have that could potentially disqualify him? What has he done in his legal career that could be used against him? I have not heard anything that, through his experience or education or actions, has disqualified him from this position. I haven't heard of any clubs he belonged to. He is a minority, so it's hard to belong to a club that excluded minorities, if he was one, so we can't run into that problem.

Maybe that is the problem. Maybe that is the problem, that we have someone who is a conservative and a minority. Is that the combination that is lethal?

Mr. BENNETT. Will the Senator yield?

Mr. SANTORUM. I am happy to yield.

Mr. BENNETT. As the Senator from Pennsylvania seeks to find a reason for opposing Mr. Miguel Estrada, I suggest to him one that comes out of yesterday's editorial in the Washington Post, as the Washington Post points out that Mr. Estrada did not cooperate with the Democrats in producing a case against him. Then it says,

Because it stems from his own and the administration's discourteous refusal to arm Democrats with examples of the extremism that would justify their opposition, they are opposed to him.

The editorial concludes:

Such circular logic should not stall Mr. Estrada's confirmation any longer.

I agree with the Washington Post in this circumstance. It may be they were hoping he would be cooperative enough to give them something to use against him and when he refused to do that, and indeed his background says there is nothing in there he could have given them, in anger they decided to turn against him.

As the Senator looks for some reason why they are opposed to him, maybe they are just disappointed over the fact he passed?

Mr. SANTORUM. I know when you try to bully someone into doing something and they don't do it, it can be pretty frustrating. But that is no reason to go to such an extreme unprecedented measure of filibustering an obviously competent, well-qualified—unanimously supported by the American Bar Association—nominee for the circuit court.

I would just say this in closing. It is my intention as a Senator to see this nominee through to a vote. I think this nominee deserves a vote. There has been no reason, no legitimate judicial reason why this nominee should not be given an opportunity to be voted on. So I will make this statement. It is this Senator's intention to do everything I can do to keep the Senate on this issue for as long as it takes for a vote to occur.

When I say "as long as it takes," let me underscore what I mean: As long as it takes.

If the other side likes to stand up and criticize Miguel Estrada and wants to filibuster his nomination, let me assure you, we will provide you plenty of opportunity and time to do that if that is what you want to do. If you want to make the next days, weeks, months, years an opportunity to talk about Judge Estrada's qualifications for this job, it is this Senator's intention to give you the opportunity to do that. He deserves, through his outstanding record of accomplishment, overcoming language, disability, and prejudice heretofore and potentially now, to get this vote.

I yield the floor.