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Public Statements

Nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the District of Columbia

By:
Date:
Location: Washington, DC

CONGRESSIONAL RECORD
SENATE
PAGE S2067
Feb. 10, 2003

EXECUTIVE SESSION

NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA

Mr. KENNEDY. Mr. President, I commend my friend and colleague from California for an excellent presentation to the Senate outlining the historic responsibilities that the executive and the Senate have in meeting all of our responsibilities to ensure we have qualified members on the courts of this country. She gave an excellent analysis of both the past activities of the court and rebutting a number of the misrepresentations that have been made about those who have raised serious questions about this nominee.

    I thought the Senator from California summarized in an important way the compelling reasons why many of us have reservations about this nominee. I thank her very much for the statement, and I hope our colleagues will pay close attention to it.

    One of the most important functions of the Senate is its constitutionally mandated advise-and-consent role in the selection of judges. This role is meant to ensure the appointees to the Federal courts are independent and fair judges, who hear all cases with an open mind, independent of the political process but also of personal ideology.

    We have all asked at one time or another what is the criteria we use in the advise-and-consent role. I have over time supported the idea that, obviously, enormous deference is given at the time a President is elected to the fact that he or she ought to be able to have the advisers of their choice. That is a period of time, before the President's term expires, when there ought to be at least a willingness to give any benefit of the doubt to those nominees.

    Then we have independent agencies which go on for a period of time beyond the time of a given President, and we advise and consent on those nominees. And then we have the Federal courts. If we make a mistake in terms of a particular judge, we have the circuit courts to which matters can be appealed, and then ultimately the Supreme Court. Our highest value is focused on the Supreme Court—lifetime appointments, and under the distribution of powers defined in the Constitution, a shared power with the President appointing and the Senate giving its advice and consent. It is a shared power.

    Many assume the Senate of the United States should rubberstamp a nominee; if we cannot find something wrong with a nominee, that we should give our stamped approval. That clearly is in conflict with the views of our Founding Fathers and in conflict with the great traditions of this institution.

    We have a very high standard when it comes to this particular court because, although it is not the Supreme Court, it is a lesser court, of the very special responsibilities and unique responsibilities it has. Therefore, we have a duty to find out the views and commitments of a nominee to the core values of the Constitution, not expecting that a nominee is going to answer a question about a particular case or a particular outcome, but talk about their views, their developed views, their mature views about constitutional values, issues on civil rights, issues on the first amendment, on the role of the Congress in terms of our responsibilities in meeting the general welfare clause, the separation of church and State, the issues of privacy and other civil rights issues—all of these matters which are of enormous importance and consequence to the people of this country in which we have seen a generation struggle and individuals in a number of instances give their lives to these causes.

    We have a very special and important responsibility to make sure those words that are above the Justice Department, "Equal Justice Under Law," are going to be equal justice under law for every person in this country.

    There is, I believe, a responsibility, not just to any member of the Judiciary Committee, not just to the Judiciary Committee, but to the American people, that a nominee has because we act as their agents in terms of our votes, and there is a responsibility to the American people that a nominee will at least talk about the Constitution and talk about these fundamental values and what the Constitution means. That has been the time-honored tradition of a nominee, going back for pretty much the history of this country.

    In this instance, there is such a complete contrast. There is an individual who will not give any information, or respond to any of the constitutional issues he was asked, not just by any single member, but by all the members, and also a refusal to provide the material which other nominees for other positions have provided in the past. Judge Bork provided material when he was a nominee for the Supreme Court; Brad Reynolds, when he was being considered as head of the Civil Rights Division, and other nominees, Republicans and Democrats alike. With Mr. Estrada, no; no, we are not going to provide that information to the Judiciary Committee. No, we are not going to answer questions about views on the Constitution. No, we are not going to provide past work. No, we are not going to provide that. No, we are not going to give that information. And yet we expect somehow the Senate will go ahead and give its approval to a nominee who comes to this nomination.

[Page S2091]

    I congratulate Mr. Estrada. He comes to this position on the basis of very humble roots and a life of personal achievement. Does that guarantee one will hold a position on the district court because one has had that experience? Should that entitle someone? Should one think of serving on the courts as an entitlement or as a reward? Clearly not. There are too many issues involving the everyday life experience of American citizens that are being decided by that court and that will affect the lives of individuals in this country. Therefore, this is too important a position for anyone, as talented as they are and as unique as their past experience, to expect they are just going to be in a privileged position and not have to be responsive to the inquiries of the members of the committee.

    That is the dilemma in which we find ourselves with this particular nominee. The Senator from California reviewed the facts, and I wish to address them as well this afternoon.

    Mr. President, we also heard important testimony about the judgment, temperament, and the commitment to statutory projections and core constitutional values that are necessary to serve as a Federal judge, especially on a court as important as the U.S. Court of Appeals for the DC Circuit. Then we have had the assault and attack on those who question his core commitment to the values of the Constitution, but the fact is, we do not know because he refused to answer the most basic questions.

    We heard the pillorying by many who expressed opinions in opposition to Mr. Estrada, and their characters were assaulted as well, I think unfairly and unjustly. We would not have to resort to the opinions of others if Mr. Estrada had been willing to respond to the questions.

    Mr. Estrada has refused to answer the basic questions posed to him in the confirmation process. As I mentioned, the White House refused to release the materials necessary for a full review of his qualifications.

    With this troubling and inadequate record, I do not believe Mr. Estrada should be confirmed to this important court, the second most powerful court in the Nation.

    The Federal courts have the power to make far-reaching decisions affecting lives of people and the life of our Nation. We have the responsibility to ensure that the people who serve on the courts will protect important constitutional and statutory rights. I do not believe Mr. Estrada is such a person.

    Although he is a distinguished legal advocate, his commitment to core constitutional values is far from clear. Mr. Estrada prevented us from learning much at all about his legal and constitutional philosophy, and throughout this process he has evaded even the most basic questions concerning how he would serve as a judge. In addition, Mr. Estrada and the administration refused to produce the documents from Mr. Estrada's time in government practice that might have helped us answer questions. So these are very serious problems, and they would require this body to reject any nominee who came before it.

    Unfortunately, some of our Republican colleagues have decided it is in their best interest to claim that we are opposing Mr. Estrada because he is Latino. This irresponsible accusation is absurd. It is belied by the strong history of those who are members of our party who have fought for opening the doors for all minorities in America, including Latinos. The Republican accusation is also dangerous and destructive. It has even been said that if we did not confirm Mr. Estrada to the DC Circuit, we would shut the door on the American dream of Hispanic Americans everywhere. Nothing could be further from the truth. As they say in sports, let's look at the record. In fact, President Clinton nominated 11 Latinos to the Nation's most powerful courts. He nominated 21 Latinos to the district courts. For these nominees, achieving the American dream meant being sensitive to the core values that make this country strong, that are embodied in the words at the entrance to the Supreme Court: "Equal justice under law."

    Nonetheless, Republicans unfairly blocked many of these nominees. Not only these nominees, but I remember Bill Lann Lee who was an Asian American, who was denied the opportunity to have a vote. He was absolutely an extraordinary and distinguished nominee whose life experience in many respects was similar, if not more compelling, in terms of his own personal success. He came from extraordinarily humble beginnings. He did not speak the language. He worked his way through school, was able to get a scholarship, I believe to Yale University. He had an absolutely distinguished record, went on as a lawyer to help knock down the walls of discrimination. He was selected as the head of the Civil Rights Division. He had just about every defendant against whom he had tried a case over the period of his career—a young man came before the committee and said: Look, we differed with Bill Lann Lee on the issues of the facts, but we want to tell this committee that this was an extraordinary lawyer who did a lawyer's job in understanding the law when arguing his case. We had nothing but the highest regard and respect for his presentation, his ability, and the way he conducted himself. Senators testified to this before the Judiciary Committee.

    But was Bill Lann Lee able to get a vote in the Judiciary Committee? No, absolutely not. Do you think he was able to get consideration on the floor of the Senate? No, he was denied that. With all of the hopes and dreams there were for hundreds of thousands, or even millions, of Asian Americans and the hopes and dreams of all of his family and relatives, he was denied confirmation and turned back. We will let the other side give the explanations for that. But this outstanding nominee, who eventually had a temporary appointment to the Justice Department and did an extraordinary job, was denied the opportunity to be voted on.

    The Bush White House, by contrast, until a short time ago, has nominated only one Latino to the court of appeals, and that is Mr. Estrada.

    One of the most important functions of the Senate is constitutional advice and consent. We cannot perform this function if we are not allowed access to the nominee's record, and by refusing to provide the Senate with the most important memoranda produced by Mr. Estrada when he was in the Solicitor's Office, the administration is trying to prevent us from performing our constitutional duty.

    The administration's refusal to provide these memoranda is not based in law or precedent. Past administrations have disclosed the legal memos in connection with both judicial and executive nominations. We have repeatedly made the administration aware of the clear precedence on the disclosure of confidential internal documents relating to the nominations of several judges, including Robert Bork to become Associate Justice on the Supreme Court, Brad Reynolds as Assistant Attorney General, Benjamin Civiletti to become Attorney General, Stephen Trott to become a judge on the Ninth Circuit, Justice Rehnquist to become Chief Justice.

    In some of those instances, they made those memoranda available only to the members of the committee, and then they asked us for the memoranda back. Agreements were worked out with the members of the Judiciary Committee. But not with regard to this nominee. We were effectively denied all of this. Justice Rehnquist, Bradford Reynolds, Assistant Attorney General for Civil Rights Benjamin Civiletti to become Attorney General, Robert Bork to become an Associate Justice of the Supreme Court—we were able to get those memoranda. But not from Mr. Estrada. They told us: You cannot have the memoranda. And we have a nominee who will not answer any questions on this. Then Members are asked why they are concerned about this process.

[Page S2092]

    Indeed, the administration has itself disclosed the past memoranda for purposes of evaluating its nominees. The Bush White House disclosed legal memoranda written by an attorney in the White House Counsel's Office in connection with the nomination of Jeffrey Holmstead for the position of assistant administrator at the Environmental Protection Agency. They are prepared to give all of the memoranda to the appropriate committees for Jeffrey Holmstead, when he was in the White House Counsel's Office in connection with a position as assistant administrator of the Environmental Protection Agency, but they will not give it to the Senate for a nominee for the DC Circuit in our Nation's Capital. Why is that? Why do they give it on the one hand and refuse to give it on the other? What is the justification that they do not have to do it?

    Then they list a number of prominent figures, many of them Democrats, who say they are under no obligation to do it. But clearly, in the past, under Republicans and Democrats, when there has been an interest in trying to reach accommodation and to have an understanding about the nominees, there has been a willingness to do it. But, no, they are not going to do it.

    We can only assume that the Administration's inconsistent position means that it has something to hide in Mr. Estrada's memoranda.

    Given the administration's recalcitrance about providing the Estrada memoranda, the Senate is left with very little to review to assure ourselves that Mr. Estrada has the commitment to constitutional and statutory protections necessary to serve on the DC Circuit. What little we do know is very troubling because Mr. Estrada's direct supervisor in the office has raised questions about whether Mr. Estrada had the necessary temperament to sit on the DC Circuit.

    As my friend and colleague from California has pointed out, Mr. Bender has stated that those statements he made were entirely true and he still stands by them. We will hear a brutal assault on Mr. Bender and his character. We have heard it previously in the Judiciary Committee, and we have heard it here. He is an outstanding individual, a former clerk to Justice Frankfurter. He argued before the Supreme Court, had an extraordinary and distinguished record, but we will hear him assaulted because he has questioned the temperament of Mr. Estrada.

    These serious allegations require some response on the merits and some evidence to the contrary. Instead, some of my colleagues in the Senate have responded by attacking Mr. Bender.

    Mr. Bender is not alone in the assessment of Mr. Estrada. It has been reported that some of Mr. Estrada's colleagues have said he is not open-minded and he "does not listen to other people."

    After an in-depth meeting with Mr. Estrada, a member of the Congressional Hispanic Caucus said he appeared to have a short fuse and did not have the judicial temperament necessary to be a judge. According to the Puerto Rican Legal Defense Fund, with whom Mr. Estrada met, he is not even-tempered and he became angry during their meetings with him and even threatened the group with legal action because they raised concerns about his record.

    Now, we have that information, but we are denied any information on the other side. Anyone who has questioned Mr. Estrada finds they are questioned themselves. But we are denied the information that may reflect an entirely different temperament.

    Some of our Republican colleagues have said Democrats who oppose Mr. Estrada's nomination are motivated by his ethnic background, but these reports that raise serious concern about Mr. Estrada come from some of the most important Latino organizations in the country. These groups correctly point out that Mr. Estrada had not taken any steps to reflect or serve his community and has never provided any pro bono legal expertise, supported or joined or participated in events of any organization dedicated to serving or advancing the Latino community, never made any efforts to open the doors of opportunity for Latino law students or junior lawyers. Mr. Estrada appears to be committed neither to his community nor to an open, fair, and impartial judicial process.

    Mr. Estrada has attempted in the past to limit the first amendment rights of minorities. I have inquired about his standing in this particular case. He sits on the board of the Center for Community Interest which advocates for police tactics that have often led to harassment and racial profiling, and his efforts reflect a lack of concern for important American ideals.

    In a case heard by the Supreme Court, Chicago v. Morales, he represented the U.S. Conference of Mayors in an amicus brief defending a tenant-loitering ordinance in Chicago. The Center for Community Interest also submitted a brief in support of the ordinance. The Chicago antiloitering ordinance applied to any group of two or more individuals who gather, with no apparent purpose, in any public place, including streets, parks, restaurants, or any other location open to the public, and mandated if a police officer reasonably believed any of the individuals to be a gang member, he could order all of the individuals, including those not suspected of gang membership, to disperse and remove themselves from the area. The Supreme Court found the ordinance violated the due process clause of the 14th amendment. It held the ordinance was unconstitutionally vague because it did not provide adequate notice of the prescribed conduct and did not set minimum guidelines for law enforcement.

    At his hearing, Mr. Estrada suggested that minority lawmakers supported the antiloitering ordinance. This is false. In fact, the ordinance was initiated by residents in a predominantly white neighborhood, and drawn up by several white aldermen. The majority of the African American aldermen on the Chicago City Council voted against it. Several aldermen compared it to an apartheid-era law in South Africa. When the case came before the Supreme Court, many of the civil rights minority groups joined amicus briefs against the ordinance, including the National Council of La Raza, Mexican American Legal Defense, and the NAACP.

    Before I come back to that issue, I take a moment to discuss the opposition to Mr. Estrada's nomination that has been voiced by some of these groups. Let me finish with the legal defense. Now we had the holding by the Supreme Court in finding that the Chicago ordinance was unconstitutional. The Supreme Court said the broad antiloitering ordinance in the Chicago-Morales case was unconstitutional. Mr. Estrada devoted man-hours in defending the City of Annapolis following this against the challenges to the Constitution of a similar antiloitering ordinance. When the NAACP challenged the ordinance, he would take the city's case all the way to the Supreme Court, if necessary, free of charge. Mr. Estrada lost that case, too, however, after a district court struck down the law as unconstitutional.

    Here he went all the way to the Supreme Court on the antiloitering. The Supreme Court made a finding, and then he takes the time to go right back to another antiloitering ordinance and insists on taking all of that and it was struck down in the district. It is difficult to understand on an issue such as that why he would have been so involved in that kind of continued activity when it reaches issues involving the first amendment.

    I am deeply concerned by Mr. Estrada's intense focus on enforcing an antiloitering ordinance. As MALDEF noted, many of the individuals who are targeted under such ordinances are minorities. Often Latino urban youth are harassed by police enforcing such ordinances, and day laborers—most often newly arrived immigrants—congregating on particular streets waiting to be offered a manual labor job are often targeted. Mr. Estrada does not seem to appreciate this effect on the minority population and did not let it affect his defense of those statutes.

    Other statements by Mr. Estrada raise additional concern about his commitment to civil rights, expressing skepticism about affirmative action. The DC Circuit has become closely divided on affirmative action and public employment programs, and a narrow majority of the DC Circuit held the Federal Government cannot require broadcasters to conduct targeted outreach to minorities and women even for the purpose of increasing the pool of qualified applicants.

[Page S2093]

    According to MALDEF, in meetings where Mr. Estrada has answered questions, he has made statements about affirmative action, calling into question whether he would find a compelling interest to justify such programs. Mr. Estrada indicated he has not raised the issue of diversity in places where he has worked and he would not be particularly vigilant about giving opportunities to Hispanic clerks. Mr. Estrada was asked about the possible reason for the lack of minority law clerks by a reporter for USA Today. According to the article, Mr. Estrada dismissed statistics showing little representation of minorities and indicated if there was some reason for underrepresentation, it would be something to look into, but I don't have any reason to see it as other than a trend in society. This is contrasted with quotes of others saying there are a variety of reasons for the lack of minority clerks.

    All of these aspects of Mr. Estrada's prior work indicate he would not bring a fair and open mind and sensible judicial temperament and commitment to civil rights and equal opportunity to the bench.

    During the course of the hearing on Mr. Estrada, he did little to allay our concerns about his record. In fact, many concerns were actually intensified by Mr. Estrada's unwillingness to respond to even the most basic and innocuous questions about his views. For instance, Mr. Estrada refused to name a single Supreme Court case of which he was critical.

    In addition, Chairman LEAHY asked Mr. Estrada whether an employer or school could take race or ethnicity into consideration in hiring admissions and Mr. Estrada refused to give any opinion on the matter. Chairman Leahy asked Mr. Estrada what he thought about the Supreme Court decision in Romer v. Evans, a decision he was purported to criticize, and he refused to agree whether he agreed with the decision, stating because he did not hear the arguments he could not have an opinion. At the same time, Mr. Estrada gave contradictory answers in response to a series of questions about whether he had an applied ideological litmus test to clerks.

    I take a moment or two again to underline the importance of the DC Circuit Court. Mr. Estrada's nomination is particularly troubling, given the importance of the DC Circuit to issues of concerns for a broad range of Americans seeking to enforce their basic rights. The DC Circuit is widely regarded as the second most important court in the United States, behind only the Supreme Court. With a unique and prominent role among the Federal Courts of Appeal, particularly in the area of administrative law, it has exclusive jurisdiction over many workplace, environmental, civil rights, and consumer protection statutes. Because the Supreme Court grants reviews of only a small number of lower court decisions, most administrative law is established by the DC Circuit. Despite the importance of the DC Circuit to a broad array of Americans, some Republicans have worked to undo any balance on the court. During the Clinton administration, the Senate, controlled by Republicans, refused to approve two of President Clinton's nominees to the DC Circuit, Elena Kagan and Allan Snyder.

    Last fall's hearing for Mr. Estrada was the first hearing for a nominee to the DC Circuit in 5 years. No questions were raised about the qualifications of either Ms. Kagan or Mr. Snyder. Both had stellar qualifications. Nevertheless, hearings for these nominations were delayed. After they finally received hearings, they were refused a vote in the committee or on the floor. Many Republicans argued that the DC Circuit did not need any more judges. Yet shortly after President Bush was elected, two judges were nominated for the court.

    I see my good friend and colleague from New York here, Senator Schumer. I know others want to speak about this important issue.

    The DC Circuit Court has a major influence on decisions involving the National Labor Relations Board. The National Labor Relations Board is the arbiter of disputes between workers and employers. We have a process where that board is to work and work effectively. There has been enormous deference given to administrative boards by the circuits generally, and by the DC Circuit in particular, but that is no longer the case. We are finding increasing numbers of decisions that are made by the National Labor Relations Board appealed to the DC Circuit and effectively overturned. This has an enormous impact and affect on workers' rights, with all of the implications that workers' rights have in terms of health care policy, in terms of wages, and in terms of pensions.

    This DC Circuit Court has great influence on whether our occupational health and safety laws are going to be enforced.

    We have seen over the period of recent times a reduction in funding for the enforcement of these laws. That has been true. But, nonetheless, some of these find their way on up to the DC Circuit Court. Having someone there who is going to understand the law, understand the importance of that legislation, and who can interpret that legislation in a fair and reasonable way is going to be enormously important if we want safety in the workplace. The DC Circuit Court is the court that makes those judgments and decisions.

    We have seen what has happened, even since OSHA has been enacted. We have reduced the number of deaths in the workplace by half.

    We see a number of other new challenges coming in the workplace in more recent times. Nonetheless, it has been effective legislation.

    Do you care about wetlands, do you care about clean air, do you care about clean water? The D.C. Circuit Court is the final court that is going to be making judgments on these environmental issues. We have seen where the administration has gone ahead and cut back on the protection of those environmental issues. We have already seen the appeals working their way through the courts and they are going to end up to the DC Circuit courts. Do you care about clean air? Do you care about clean water? Do you care about the environment? The DC Circuit Court is where these matters are going to be decided.

    Do we have anything from Mr. Estrada to indicate whether he has any interest at all in protecting the environment? Whether he has any interest at all in workplace justice? Any interest at all in workplace safety? It just goes on from there.

    The D.C. Circuit will also hear cases on civil liberties. In the past, the wiretap issue has come up in the appeals process. Are we going to be a country that protects its Constitution?

    The list goes on, issue after issue, defining what this country stands for. In terms of protecting rights, the D.C. Court is the court. To stonewall the committee on each and every one of these subjects, as the nominee has done, refusing to talk about any of them, I think reflects a contemptuous attitude towards the whole nomination process. In that way, he is not worthy to receive the support of the Senate of the United States.

    To reiterate, one of the most important functions of the Senate is its constitutionally mandated advice and consent role in the selection of Federal judges. This role is meant to ensure that appointees to the federal courts are independent and fair judges who hear all cases with an open mind, independent not only of the political process but also of personal ideology.

    Miguel Estrada does not fit this model. He lacks the judgment, temperament, and commitment to statutory protections and core constitutional values that are necessary to serve as a Federal judge, especially on a court as important as the United States Court of Appeals for the D.C. Circuit. He has refused to answer many basic questions posed to him in the confirmation process, and the White House has refused to release the materials necessary for a full review of his qualifications. On this troubling and inadequate record, Mr. Estrada should not be confirmed to this important court, the second most powerful court in the nation.

    We cannot stand by and allow a Republican White House and Republican-controlled Senate to steamroll the confirmation of controversial nominees like Mr. Estrada, who would undermine the important role of the Federal courts as a place for a full, fair, and impartial hearing. The Federal courts have the power to make far-reaching decisions affecting the lives of our people and the life of our Nation. We have the responsibility to ensure that the people who serve on these courts will protect important constitutional and statutory rights.

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    Mr. Estrada is not such a person. Although he is a distinguished legal advocate, his commitment to core constitutional values is far from clear. Mr. Estrada has prevented us from learning much at all about his legal or constitutional philosophy. Throughout this process, he has evaded even the most basic questions concerning how he would serve as a judge. In addition, Mr. Estrada and the administration have refused to produce documents from Mr. Estrada's time in government practice that might help us answer questions about his record and the approach he would bring to judging.

    These are very serious problems, and they would require this body to reject any nominee who came before it. Some of our Republican colleagues, unfortunately, have decided it is in their interest to claim that we are opposing Mr. Estrada because he is Latino. This irresponsible accusation is absurd. It is belied by a strong history in the Democratic Party of opening doors for all minorities in America, including Latinos. The Republicans' accusation is also dangerous and destructive.

    It has even been said that if we do not confirm Mr. Estrada to the D.C. Circuit, we would "shut the door on the American dream of Hispanic-Americans everywhere." Nothing could be further from the truth. In fact, President Clinton nominated 11 Latinos to the Nation's powerful appellate courts. He nominated 21 Latinos to the district courts. For these nominees, achieving the American dream meant being sensitive to the core values that make this country strong, and that are embodied by the words above the entrance to the Supreme Court: "equal justice under law." Nonetheless, Republicans unfairly blocked many of these nominees.

    The Bush White House, by contrast, has, until last week, nominated only one Latino to the courts of appeals: Mr. Estrada.

    The White House and some Senate Republicans have complained that Senate Democrats have not supported Mr. Estrada because he is Latino. We should not lightly accuse other Members of this body of such prejudice, but make no mistake: That is exactly what some Republicans are accusing Democrats of. The record belies this accusation.

    Until last week, President Bush had nominated 130 people to the Federal courts. Out of those 130 nominees, there were only 8 Latinos. Six of these Latino nominees were confirmed last session when Democrats controlled the Senate. The record is clear that Senate Democrats are eager to see the diversity of the Federal bench increased by confirming Latino nominees, even when those nominees come from a Republican White House.

    Senate Democrats have eagerly confirmed Latino nominees, even when those Latino nominees are relatively conservative. So when some Members of the Senate say that Democrats have a different standard for Latino nominees, that accusation is unfounded.

    Nonetheless, these accusations have continued. It is a dangerous and irresponsible attempt to play politics with important issues of race, and frankly it is beneath the dignity of this body. For example, Senator LOTT has said quite bluntly that Democrats "don't want Miguel Estrada because he's Hispanic."

    Senator HATCH has said that Democrats are creating a glass ceiling for Latinos, so that "if they do not think a certain liberal way . . . then they are not good enough."

    Senator DOMENICI has said that he is perilously close to saving our opposition to Miguel Estrada's nomination is because of his race. Senator DOMENICI is right about one thing, these statements are perilous.

    They are also just plain wrong. During the last Democratic administration, 23 Latino nominees were confirmed to the Federal court—more than in any prior administration, Republican or Democrat.

    It has been Senate Republicans who have unfairly blocked the confirmation of Latino nominees. The Republican-controlled Senate refused to confirm eight Latino nominees. No one accused Republicans of prejudice. Jorge Rangel and Enrique Moreno, both nominated to the Fifth Circuit Court of Appeals from Texas, were not even afforded hearings by the Republicans. Still, no one cried prejudice.

    Mr. Rangel and Mr. Moreno each waited more than a year in the Senate. When Senate Republicans refused to give these nominees a hearing, their nominations were returned to the White House. President Clinton renominated Enrique Moreno, but President Bush withdrew his nomination. In his place, President Bush nominated Judge Pickering and Justice Owen, two divisive and controversial nominees with very troubling records on issues such as civil rights.

    Just as disturbing, Senate Republicans expressed the notion that Mr. Moreno may not have been qualified for the position. Mr. Moreno, like Mr. Estrada, was a Harvard-educated lawyer who was adjudged well-qualified by the American Bar Association. Mr. Moreno was eminently qualified for the position, but Senate Republicans disparaged him without even affording him a hearing. Still, we did not say this was the result of bigotry.

    Other Hispanic-Americans who were never confirmed by the Republican-controlled Senate include Christine Arguello, nominated to the Tenth Circuit Court of Appeals from Colorado; Ricardo Morado, nominated to the District Court in Texas; and Anabelle Rodriguez, nominated twice to the District Court in Puerto Rico. None of these qualified individuals were confirmed by the Republicans.

    Mr. Estrada, on the other hand, received a hearing from the Democratic-controlled Senate. We wanted to look into his record and see what kind of judge he would be. But we were blocked at every turn. The Bush administration refused to let us look at some of Mr. Estrada's most important work as a Deputy Solicitor General in the Justice Department. Mr. Estrada himself has refused to answer questions about his views on the law and the courts.

    We have serious concerns about Mr. Estrada that have nothing to do with his ethnic background. We have been prevented from learning anything about him. We certainly have not been allowed to learn enough to justify support for this nomination.

    Our Republican colleagues also claim that Mr. Estrada "has tremendous support among Hispanic people." In fact, major Latino organizations have raised strong concerns about Mr. Estrada. The Congressional Hispanic Caucus has opposed his nomination. Other Latino organizations that have opposed or raised concerns about Mr. Estrada include: the Mexican American Legal Defense Fund, the Puerto Rican Legal Defense Fund, the National Association of Latino Elected and Appointed Officials, the National Council of La Raza, the California La Raza Lawyers, the Southwest Voter Registration Project and the Illinois Puerto Rican Bar Association.

    These groups represent a wide array of views and the broad diversity of the Latino community. Listen to what they say about him, and why they oppose him. The Congressional Hispanic Caucus has said:

    The appointment of a Latino to reflect diversity is rendered meaningless unless the nominee can demonstrate an understanding of the historical role courts have played in the lives of minorities in extending equal protections and rights; has some involvement in the Latino community that provides insight into the values and mores of the Latino culture in order to understand the unique legal challenges facing Latinos; and recognizes both the role model responsibilities he or she assumes as well as having an appreciation for protecting and promoting the legal rights of minorities who historically have been the victims of discrimination.

    Based on the totality of the nominee's available record and our meeting with him, Mr. Estrada fails to meet the CHCs criteria for endorsing a nominee.

    In our opinion, his lack of judicial experience coupled with a failure to recognize or display an interest in the needs of the Hispanic community do not support an appointment to the federal judiciary.

    There is no mention of the fact that Mr. Estrada is conservative. The Congressional Hispanic Caucus did not come out against the other Latino nominees put forward by the Bush administration. Their opposition is grounded in the fact that Mr. Estrada himself does not reflect the views of the Latino community, and that he has shown to be unable or unwilling to set aside his conservative ideology in his legal analysis.

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    The Mexican American Legal Defense Fund issued a statement opposing Mr. Estrada last Monday, stating:

    The most difficult situation for any Latino organization is when a President nominates a Latino who does not reflect, resonate or associate with the Latino community, and who comes with a predisposition to view claims of racial discrimination and unfair treatment with suspicion and doubt instead of with an open mind. Unfortunately, the only Latino who President Bush has nominated in two years to any federal circuit court in the county is such a person. President Bush nominated Mr. Estrada to the D.C. Circuit Court of Appeals.

    After a thorough examination of his record, his confirmation hearing testimony, and his written answers to the U.S. Senate, we announce today our formal opposition to his nomination.

    Is this the racism that Senator Domenici is perilously close to claiming? No. These groups and others raise serious concerns about Mr. Estrada's ability or willingness to be sensitive to the needs Latino and other minority communities.

    Other groups have echoed these concerns. The Puerto Rican Legal Defense Fund also oppose his nomination. They have stated:

    We strongly believe that Mr. Estrada's nomination should be opposed and rejected. Potential nominees who aspire to such important positions as circuit judges should be better qualified and possess the unquestioned ability to be fair, open-minded and committed to equal justice for all Americans. They should be connected to the real-world concerns of the people who will be governed by their decisions. They should also be even-tempered. In our view, Mr. Estrada clearly does not possess the qualities necessary to be placed in such an important position of trust—for a lifetime—interpreting and guarding the rights of ordinary Americans.

    These groups and others like them raise serious concerns about this nominee. They certainly are not opposed to Mr. Estrada because of his race, and neither are the Senate Democrats who feel that this nominee lacks the judgment and temperament to serve on the Court of Appeals for the D.C. Circuit.

    One of the most important functions of the Senate is our constitutional advice and consent role. We cannot perform this function, however, when we are not allowed access to a nominee's record. By refusing to provide the Senate with the important memoranda produced by Mr. Estrada when he was in the Solicitor General's office, the administration is trying to prevent us from performing our constitutional duty.

    The administration's refusal to provide these memoranda is not based in law or precedent. Past administrations have disclosed legal memos in connection with both judicial and executive nominations, including the nominations of justice Rehnquist to be Chief Justice of the United States, and of Stephen Trott to be a judge on the Ninth Circuit.

    Indeed, this administration has itself disclosed past memoranda for purposes of evaluating its nominees, including the nomination of Jeffrey Holmstead for the position of Assistant Administrator at the Environmental Protection Agency. We can only assume that the administration's inconsistent position means that it has some thing to hide in Mr. Estrada's memoranda.

    Given the administration's recalcitrance about providing Mr. Estada's memoranda, the Senate is left with very little to review to assure ourselves that Mr. Estrada has the commitment to constitutional and statutory protections necessary to serve on the D.C. Circuit. What little we do know is very troubling. Mr. Estrada's direct supervisor in the Office of the Solicitor General has raised questions about whether Mr. Estrada has the necessary temperament and moderation to sit on the D.C. Circuit.

    Mr. Bender is not alone in this assessment of Mr. Estrada. It has been reported that some of Mr. Estrada's colleagues have said that he is not open-minded and that he "does not listen to other people." After an in-depth meeting with Mr. Estrada, a member of the Congressional Hispanic Caucus stated that Mr. Estrada appeared to have a "very short fuse" and that he did not "have the judicial temperament that is necessary to be a judge." According to the Puerto Rican Legal Defense Fund, with whom Mr. Estrada met, he is not "even-tempered"—indeed he became angry during their meetings with him, and he even threatened the group with legal action because they had raised concerns about this record.

    Some of our Republican colleagues have said that Democrats opposed to Mr. Estrada's nomination are motivated by his ethnic background, but these reports that raise serious concerns about Mr. Estrada come from some of the most important and committed Latino organizations in the country.

    These groups correctly point out that Mr. Estrada has not taken any steps to reflect or serve his community. He has never provided any pro bono legal expertise to the Latino community. He has never joined, supported, volunteered for or participated in events of any organization dedicated to serving and advancing the Latino community. And he has never made any efforts to open doors of opportunity to Latino law students or junior lawyers. Mr. Estrada appears to be committed neither to his community, nor to an open, fair and impartial judicial process.

    Mr. Estrada has attempted in the past to limit the first amendment rights of minorities. He even sits on the board of the Center for Community Interest, which advocates for police tactics that have often led to harassment and racial profiling in minority communities. His efforts reflect a startling lack of concern for important American ideals.

    In a case heard by the Supreme Court, Chicago versus Morales, Mr. Estrada represented the U.S. Conference of Mayors in an amicus brief defending an antiloitering ordinance in Chicago.

    The Chicago antiloitering ordinance applied to any group of two or more individuals who gather with "no apparent purpose" in any public place including streets, parks, restaurants, and any other location open to the public. The ordinance allowed police to disperse any group of two or more individuals, so long as they reasonably believed any of the individuals to be a gang member. The Center for Community Interest also submitted a brief in support of the ordinance. Many civil rights and minority groups joined amicus briefs against the ordinance, including the National Council of La Raza, the Mexican American Legal Defense Fund, and the NAACP.

    The Supreme Court found that the ordinance violated the Due Process Clause of the fourteenth amendment.

    I want to take a moment here and discuss the opposition to Mr. Estrada's nomination that has been voiced by some of the groups that argued against the Chicago ordinance. These groups, including the National Council of La Raza and MALDEF have understandably opposed Mr. Estrada's nomination. Some of my Republican colleagues would have you believe that this opposition, which I share, is somehow on account of his ethnic background. It is not. One of our colleagues has said of Democrats that "if you're a conservative and a minority, we hate you." In fact, the Democratic-led Senate has confirmed a number of Latino judges who have been nominated by the conservative White House. We confirmed Judge Christina Armijo, Judge Phillip Martinez, Judge Jose Martinez, Magistrate Judge Alia Ludlum, Randy Crane, and Judge Jose Linares.

    Mr. Estrada is opposed, not because he is Latino, but because what little record we have been allowed to review shows that he is not concerned with important constitutional rights, and he is unable to separate his ideology from his legal analysis.

    Even after the clear rebuke from the Supreme Court about broad antiloitering ordinances in Chicago versus Morales, Mr. Estrada devoted many hours to defending the City of Annapolis against challenges to the constitutionality of a similar antiloitering ordinance. When the NAACP challenged the ordinance, Mr. Estrada "offered to take the city's case all the way to the U.S. Supreme Court, if necessary, free of charge." Mr. Estrada lost that case too, however, after a Federal District Court struck down the law as unconstitutional.

    I am deeply concerned by Mr. Estrada's intense focus on enforcing antiloitering ordinances. As MALDEF has noted,

many of the individuals who are targeted under such ordinances are minorities, and often, Latino urban youth are harassed by police enforcing such ordinances. Day laborers who are most often newly arrived immigrants who look for work by congregating on particular public streets to wait to be offered a manual labor job for the day

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are often targeted under these ordinances. Mr. Estrada did not seem to appreciate this effect on the minority population, and he certainly did not let it affect his defense of those statutes.

    Other statements by Mr. Estrada raise additional concerns about his commitment to civil rights. For instance, Mr. Estrada has expressed skepticism about affirmative action. The D.C. Circuit has recently been closely divided on affirmative action in public employment programs. A narrow majority of the D.C. Circuit recently held that the Federal Government cannot require broadcasters to conduct targeted outreach to minorities and women even for the purpose of increasing the pool of qualified applicants.

    According to MALDEF, in meetings where Mr. Estrada has answered questions since his nomination, he has made statements about affirmative action that call into question whether he would find a compelling interest to justify such programs. Mr. Estrada indicated that he had not raised the issue of diversity in places where he has worked, and that he would not be particularly vigilant about giving opportunities to Hispanic clerks.

    Mr. Estrada was asked about the possible reasons for the lack of minority law clerks by a reporter for USA Today. According to the article, Mr. Estrada "dismissed the statistics showing little representation of minorities" and stated that "if there was some reason for under-representation, it would be something to look into, but I don't have any reason to think it is anything other than a reflection of trends in society." His quote was contrasted with statements by others that a variety of reasons are to blame for the lack of minority clerks.

    All of these aspects of Mr. Estrada's prior work indicate that he would not bring a fair and open mind, a sensible judicial temperament, and a commitment to civil rights and equal opportunity to the bench.

    Mr. Estrada's hearing did little to allay our concerns about his record. In fact, many concerns were actually intensified by Mr. Estrada's unwillingness to respond to even the most basic and innocuous questions about his views. For instance, Mr. Estrada refused to name a single Supreme Court case of which he was critical. In addition, Chairman LEAHY asked Mr. Estrada whether an employer or a school could take race or ethnicity into consideration in a hiring or admissions decisions. Mr. Estrada refused to give any opinion on the matter.

    Chairman LEAHY asked Mr. Estrada what he thought about the Supreme Court decision in Romer versus Evans—a decision he was reported to have criticized. Mr. Estrada again refused to answer whether he agreed with the decision, stating—incredibly—that because he did not hear the arguments in the case, he could not have an opinion.

    At that same time, Mr. Estrada gave contradictory answers in response to a series of questions about whether he had applied an ideological litmus test to clerks. Mr. Estrada, along with other former law clerks of Justice Anthony Kennedy, helps the Justice in choosing clerks by interviewing applicants. Two prospective clerks stated in an article in the Nation last September that Mr. Estrada told them that he screened clerks for Justice Kennedy in order to prevent Justice Kennedy from hiring any liberal clerks, apparently in response to Justice Kennedy's voting to strike down the anti-gay rights statute at issue in Romer versus Evans.

    Senator SCHUMER asked Mr. Estrada whether he "had ever told anyone that you do not believe any person should clerk for Justice Kennedy because that person is too liberal, not conservative enough, because they didn't have the appropriate ideology, politics, or judicial philosophy or because you were concerned that person would influence Justice Kennedy to take positions you did not want him taking?" Mr. Estrada answered unequivocally that he had not. After the break for lunch, however, Mr. Estrada revised his answer saying:

    there is a set of circumstances in which I would consider somebody's ideology, if you want to call it that, in trying to interview somebody for Justice Kennedy, whether on the left or on the right. And that is to say, if I thought that there was somebody who had views that were so strongly held on any subject, whether, you know, the person thinks there ought not to be the death penalty or whether the person thinks that the income tax ought not to be constitutional or anything, if I think that the person has some extreme view that he will not be willing to set aside.

    Again, when Senator SCHUMER repeated his earlier question, Mr. Estrada hedged, saying that "I have taken account the ideological learnings of a potential law clerk only when it appears to me—and this is something that I don't have a final say on, but I do tell Justice Kennedy that this person has a strongly held view on a subject that he would not be willing to put aside in the service of the Justice."

    Mr. Estrada later conceded that ideology was one of the areas he "would explore in trying to find whether the law clerk candidate was suitable for Justice Kennedy."

    This response is troubling, because it suggests a lack of candor in answering the first, very clear question put to Mr. Estrada by Senator SCHUMER. Clearly, it would be troubling if Mr. Estrada were subjecting clerks to an ideological litmus test in order to ensure that only conservative clerks would gain clerkships with Justice Kennedy and to avoid outcomes that Mr. Estrada found unfavorable.

    My Republican colleagues, unfortunately, have decided to react to these serious allegations by simply leveling personal attacks against the individuals who were interviewed by Mr. Estrada. Such personal attacks seem to be a pattern. Our Republican colleagues have attacked Paul Bender, Mr. Estrada's direct supervisor, because they did not
like what he had to say about Mr. Estrada's inability to separate his ideology from his legal analysis. They have attacked Senate Democrats, accusing us of opposing Mr. Estrada on account of his ethnic background, when the concerns we raised are legitimate concerns about his ideology. And now they attack these law clerk applicants, whose voices have joined a growing chorus of people who question Mr. Estrada's ability to keep his conservative ideology from affecting his professional judgment. I call upon my Republican colleagues to halt these personal attacks, and talk about Mr. Estrada's qualifications to serve on the D.C. Circuit.

    Mr. Estrada's nomination is particularly troubling given the importance of the D.C. Circuit to issues of concern to a broad range of Americans seeking to enforce their basic rights. The D.C Circuit is widely regarded as the second most important court in the United States, behind only the Supreme Court. It has a unique and prominent role among the federal courts of appeals, particularly in the area of administrative law. It has exclusive jurisdiction over many workplace, environmental, civil rights, and consumer protection statutes. Because the Supreme Court grants review of only a small number of lower court decisions, most administrative law is established by the D.C. Circuit.

    Despite the importance of the D.C. Circuit to a broad array of Americans, some Republicans have worked to undo any balance on the court. During the Clinton administration, the Senate, controlled by Republicans, refused to approve two of President Clinton's nominees to the D.C. Circuit—Elena Kagan and Allan Snyder. Last fall's hearing for Mr. Estrada was the first hearing for a nominee to the D.C. Circuit in 5 years. No questions were raised about the qualifications of either Ms. Kagan or Mr. Snyder—both had stellar qualifications. Nevertheless, hearings for these nominees were delayed, and after they finally received hearings they were refused a vote in the Committee or on the floor.

    Many Republicans argued then that the D.C. Circuit did not need any more judges. Yet shortly after President Bush was elected, two judges were nominated to the D.C. Circuit.

    Given the importance of this circuit, and the Republicans' obstruction of President Clinton's nominees, scrutiny of this nominee is particularly warranted.

    Mr. Estrada's record is troubling, and his unwillingness to supplement the record with meaningful answers to questions or the production of the memoranda from his tenure at the Solicitor General's office, preclude his confirmation to the important D.C. circuit. A life-tenure appointment to a court so important is resolving issues involving workers, immigrants, women, and the environment cannot be given to a nominee about whom we know so little.

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    The Constitution does not contemplate a Senate that acts as a rubber stamp. A genuine advise and consent role is essential. If the administration continues to nominate judges who would weaken the core values of our country and roll back the civil rights laws that have made our country a more inclusive democracy, the Senate should reject them.

    Everything we know of Miguel Estrada leads to the conclusion that he would be such a judge. His confirmation should be rejected.

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