Senator Maria Cantwell's Floor Statement on the Nomination of Miguel Estrada

February 13, 2003

Senator Maria Cantwell's Floor Statement on the Nomination of Miguel Estrada

Mr. President, last night I sat in my office listening to my colleagues, most on the other side of the aisle, debating the issue of Miguel Estrada's nomination to the second most powerful court in the country, the District of Columbia Circuit Court of Appeals. Even after all of the debate, some people may not realize that the D.C. Circuit Court is the overseer of all Federal agencies. It is the court that is most likely to make decisions about whether Federal regulations will be upheld or overturned, whether reproductive rights will be retained or lost, or whether intrusive Government actions will be allowed or curtailed.

I understand why some of my colleagues last night may have become heated with the determination of our side of the aisle to filibuster this nomination. Many of my colleagues wanted to know why we believed we had no other choice but to filibuster the nomination.

It is time we quit dancing around the issue. The question that has gotten so many of us concerned is whether this body is going to approve Bush administration nominees to the Court of Appeals who are out of step with the mainstream views of America.

Someone said last night: Maybe that side of the aisle doesn't want to appoint conservatives.

That is not the issue. The issue is that we don't want to appoint someone who clearly refuses to answer questions on key issues of the constitutional right to privacy, only later to find out they will not uphold current law on protecting a woman's right to choose!

Upholding a woman's right to choose is an important privacy issue, and something about which we should all be concerned. It is an issue on which we have 30 years of settled law, and women across America count on that right.

But there are other stories and other issues of privacy we should also be concerned about. We are at a unique time in our country's history, a time when U.S. citizens have been treated as enemy combatants and imprisoned without access to counsel or trial by jury. We are at the tip of the iceberg of the information age where businesses may have access to personal information and exploit that information. Where health care industry people might have access to your most personal medical information. Where the Government has established a process of eavesdropping on and tracking U.S. citizens without probable cause. Where the Government has the ability to use and develop software that can track one's use of web sites and information on their personal computer without their consent or knowledge.

These are all important privacy questions that deserve to have the attention of any nominee to the Circuit Court of Appeals. When Miguel Estrada refused to answer the questions my colleagues on the Judiciary Committee posed to him about the issue of privacy, and whether or not he in fact believed in a constitutional rights to privacy, it was troubling to me and to my colleagues who are opposing this nomination. We need to have answers to these questions before Miguel Estrada can be confirmed.

Make no mistake—the public is hearing a lot of bickering in the Chamber about numbers. How many nominees on this side have we pushed through, how many nominees have they pushed through, when a particular party was in charge. I am not sure the public wants to follow that debate.

But one debate I am sure they want to follow is the failure of Miguel Estrada to tell us what he believes. A 2001 poll shows that seventy four percent of the American public believes the question of judicial philosophy should be asked of nominees to the appellate court and that answers should be given. Over 50 percent of Americans believe Members should not vote to confirm otherwise qualified nominees if they think their views on important issues are wrong.

Of course we cannot even make that judgement and we aren't left with a lot of options, when Miguel Estrada won't specifically answer the questions.

Some have said that the issue is simply that we don't like his answers to the questions. I believe that it is important to view this debate in a larger context. This debate is about what this Administration means when it says we should appoint people to the court and who have a strict constructionist view of the Constitution. Like most Americans, I was not entirely sure what that phrase means. So I looked for further clarification. I found some that was very interesting. In January 2000, the President appeared on one of the Sunday talk shows. And he was asked about strict constructionism. He was asked the following:

"With regard to strict construction, we will put up on our screens some words from Justice Scalia pertaining to abortion. [Justice Scalia] said: 'There is no constitutional right to abortion. I reach that conclusion because of two simple facts: One, the Constitution says absolutely nothing about it and, two, the longstanding traditions of American society have permitted it to be legally proscribed.'"

The host then asked the President, "Would you ask a nominee that question? Do you agree with that?"

The President responded: "I guess you would have to say that is my idea of a strict constructionist."

So when people talk about a strict constructionist, very often they are talking about someone who doesn't believe in the constitutionality of a woman's right to choose.

An editorial in the Atlanta Journal Constitution makes the point as well:

"The same spirit of deception is apparent when the topic turns to abortion. Bush is committed to overturning the U.S. Supreme Court decision legalizing early term abortion; but in most settings, he dares not mention the truth because he understands how unpopular it would be. So instead of being frank about his stance, he talks in code of appointing judges who believe in strict construction of the U.S. Constitution."

Mr. President, I don't think that is what this body should support. And in this context I do not think we should approve nominees who will not answer questions about their view on whether the right to privacy is guaranteed in our Constitution.

Make no mistake about it. This is not about someone's political views, this is about each nominees' judicial philosophy.

We had a very interesting debate before the Senate Judiciary Committee on a nominee to the Tenth Circuit, Michael McConnell, a man who in private practice and as a law professor had espoused many views in opposition to abortion rights and was very critical of the decision in Roe v. Wade. I do not agree with, probably, any of the political views of Michael McConnell. Yet he came before our Committee and, for hours, outlined his judicial philosophy, his understanding of stare decisis, his view on where the right to privacy exists within the Constitution and how it has evolved. He was very specific in saying he thought the issue had been settled. In just one of the many, many answers he gave on privacy he said:

I think most scholars would agree. In Roe, the Court canvassed several different possible textural bases and said it didn't matter which one of the bases. It was only in Planned Parenthood v. Casey that the Court finally came down to a single methodology and identified the privacy right as rooted in the substantive due process of the 14th amendment.
Mr. McConnell went on:

Not only was Roe v. Wade decided by the Supreme Court, but a lot has happened in the 26 to 27 years, or however many it has been, since Roe v. Wade. That decision has now been considered. It has been reconsidered and reaffirmed by justices appointed by Presidents Nixon, Ford, Reagan, Bush, and Clinton after serious re-argument. At the time when Roe v. Wade came down, it was striking down State statutes of 45 of the 50 States of the Union. Today it is much more reflective of the consensus of the American people on the subject.

I offer this as an example of a nominee who was confirmed! Approved with bipartisan support. Was it because we agreed with his political views on abortion? No. It was because he came before the Senate and answered the question about the constitutionality of people's right to choose.

Now, some may say, well, this particular nominee, Miguel Estrada doesn't want to be that specific. We have all heard about this particular court, the District of Columbia, and how important it is to our country—the second highest court in the land—and the particulars of why this particular nominee may be so important. But again we also have to look at this nominee in context.

This is not the first troubling nominee this administration has supported. They have put before us other individuals who, I believe, have been judicial activists in their role on various courts. We have been successful in defeating their nomination. Although we may be going to see them sometime in the future.

Several months ago, the President nominated Priscilla Owen to the Fifth Circuit. In a series of cases interpreting a new Texas law on parental consent, Owen suggested that a minor, even in the case of rape and incest, should be required to demonstrate that she had received religious counseling before receiving medical care. She insisted that her holding followed Supreme Court precedent, yet she was unable to demonstrate where in the Supreme Court precedent the requirement on religious counseling existed. That is because it doesn't. Our law does not require those seeking abortion to have religious counseling. Her dissent in a similar case was called an "unconscionable act of judicial activism," by White House Counsel, Alberto Gonzales.

Another Bush nominee, Charles Pickering, received an unfavorable vote from the Senate Judiciary Committee last year after it became clear he had intervened on behalf of a convicted cross burner, calling prosecutors, including high-level officials in the Department of Justice, in an effort to lower the sentence of the convicted cross burner. The victim in this case said, after
learning for the first time about the role that was played by Judge Pickering, that her "faith in the judicial system had been destroyed."

This is the context in which we view the nomination of Miguel Estrada . It is not clear where Miguel Estrada stands on the issues. He doesn't have a record like Priscilla Owen, or like Judge Pickering, about which we can ask questions. So the fact that he refuses to answer those questions, and the fact that the administration has proclaimed that they are very interested in nominating people with "strict constructionist" views about the Constitution, has left us very concerned about this particular nominee.

Let me be clear. The public doesn't care about our bickering on numbers, but they do care about us doing our job and asking questions about the nominee's views on important issues.

Another survey that was done last year asked whether individuals thought the views of nominees on specific issues should be taken into account, that Senators are expected to have a viewpoint by the people who elect them and not simply rubberstamp the nominees the President sends to the Senate. And 77 percent found that to be the persuasive argument to which they agreed.

The public was also asked whether the views of nominees on specific issues should be taken into account since Federal judges serve for life and are not elected by the people, and no one should be put on the bench if that person holds a position on an important issue that Senators think is simply wrong. Again, 77 percent of the public believed that was a persuasive argument and correct.

The issue is that the public does want us to do our job. They want us to find out the positions of these nominees.

It was not that long ago we had another issue before this body, a nomination to the Supreme Court of Justice Clarence Tomas. At that time, Judge Thomas refused to answer questions on the right to privacy, saying he thought there had been too much controversy on the issue and he did not have a personal view on whether Roe v. Wade had been rightly decided.

But then, only one year later, he dissented in Planned Parenthood v. Casey stating that Roe v. Wade should be overturned!

This debate is very alarming to Americans. It is alarming because they want to know that their judiciary represents the views of the mainstream public; they want to know that the judiciary will uphold current law; that they will follow stare decisis. They want to know that the right of privacy, as it has been recognized in the Constitution, will be upheld.

We have to go back and do our homework on this particular nominee. I think most people in America understand if you go to take a pass-fail test and you do not answer the questions, it is very hard for you to pass. We have all heard of oral exams where you have to show and understand the material you have been studying for years. If you do not show the comprehension of that material, you do not pass. I think people here understand that if you come before the Senate Judiciary Committee and fail to answer the questions, you do not pass as well.

Maybe we will not agree on the types of positions this side of the aisle would support for a nominee. Maybe that side of the aisle does support people of strict constructionist views who do believe that Roe v. Wade should be overturned, but let's not put forth and continue to pursue a nominee who refuses to answer the questions. These are questions that deserve an answer. These are questions about which this body should hold its head up high and say, as we continue in an age where privacy is going to become more important, that we will continue to fight for the rights of the American people.