Senator Specter Makes a Floor Statement Regarding the Nomination of Miguel Estrada

SENATOR SPECTER MAKES A FLOOR STATEMENT REGARDING THE NOMINATION OF MIGUEL ESTRADA

I have sought recognition to support the nomination of Miguel Estrada. We have heard a lot about his academic record. The Senator from New York knows what a taste of being magna cum laude at Harvard is like. He is a Harvard graduate himself. I know what it is like to be magna cum laude of Harvard, too, and the Phi Beta Kappa standing from Columbia and magna cum laude there, and editor of the Harvard Law Review.

These academic credentials are unsurpassable. Fifteen cases argued before the Supreme Court, extraordinary. Clerk for the U.S. Supreme Court Justice--again, an ``A+'' rating. There could be no doubt about the qualifications of this man.

Now, there is an objection raised that not enough is known about his philosophy. What is really being attempted here is to impose a test that you have to be in philosophical agreement in order to get the vote of a Senator for confirmation. I suggest that is an inappropriate test. It is not the traditional test. It is going much too far.

When Justice Scalia was confirmed, he would not even give his opinion on whether he would uphold Marbury v. Madison. There have been many Supreme Court nominees and circuit court nominees with whom I have disagreed philosophically on major points, but I have not withheld my vote in confirmation for Chief Justice Rehnquist, Justice Scalia, Justice Kennedy and Justice Thomas because I did not like their views on the issue of choice.

If a nominee is outside of the mainstream, that is one thing. I did not hesitated to oppose the nomination of Judge Robert Bork, where he was outside of the mainstream, even though he was nominated by my party, where he articulated the view of original intent, which simply could not be comprehended, and did not accept judicial review. He said absent original intent, there is no judicial legitimacy, and absent judicial legitimacy there cannot be judicial review. That is beyond the mainstream.

No one can contend Miguel Estrada is beyond the mainstream. If there are specific objections, let's hear them. But we have not heard them.

Then you have the business about the refusal to turn over his memoranda when he was in Solicitor General general's office, and you have the letter from seven ex-Solicitors General, which I ask unanimous consent to have printed in the RECORD--both Democrat and Republicans.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

WILMER, CUTLER & PICKERING,

Washington, DC, June 24, 2002.
Hon. PATRICK J. LEAHY,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.

Dear Chairman Leahy: We write to express our concern about your recent request that the Department of Justice turn over ``appeal recommendations, certiorari recommendations, and amicus recommendations'' that Miguel Estrada worked on while in the Office of the Solicitor General.

As former heads of the Office of the Solicitor General--under Presidents of both parties--we can attest to the vital importance of candor and confidentiality in the Solicitor General's decisionmaking process. The Solicitor General is charged with the weighty responsibility of deciding whether to appeal adverse decisions in cases where the United States is a party, whether to seek Supreme Court review of adverse appellate decisions, and whether to participate as amicus curiae in other high-profile cases that implicate an important federal interest. The Solicitor General has the responsibility of representing the interests not just of the Justice Department, nor just of the Executive Branch, but of the entire federal government, including Congress.

It goes without saying that, when we made these and other critical decisions, we relied on frank, honest, and thorough advice from our staff attorneys, like Mr. Estrada. Our decisionmaking process required the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis, if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality.

Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests--a cost that also would be borne by Congress itself.

Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrified in the process.

Sincerely,
Seth P. Waxman,

On behalf of
Walter Dellinger,
Drew S. Days, III,
Kenneth W. Starr,
Charles Fried,
Robert H. Bork,
Archibald Cox.

Mr. SPECTER. It is absolutely chilling to the operation of the Solicitor General's office or the operation of any governmental office with lawyers working to say their work product, their views, will be subject to review and scrutiny if they are later nominated to some judicial position.

I think it boils down to--I will not call the request for the opinions of the Solicitor General's office a red herring; that could be a little too harsh--it certainly is a subterfuge. It is not what they are really looking for. They are looking for an excuse.

The news reports today are that the Democrats plan a filibuster. That is the headline: ``Democrats Plan Filibuster on Estrada Nomination.'' If that is so, the Senate is going to come to a grinding halt. If Miguel Estrada cannot be confirmed, then I doubt that anybody can be confirmed. We may be locked in debate on this matter--I heard an estimate of 3 months at lunch; that may be an understatement.

I don't think the American people are going to tolerate this. There has been much too much judicial politics. Republicans are as guilty of it as are the Democrats. When President Clinton was in office and Republicans controlled the Senate, nominations were blocked inappropriately. I was prepared to cross party lines where I thought it was justified. Now that we have a Republican in the White House and the Democrats have controlled the Judiciary Committee for most of the last 2 years, the shoe is on the other foot and there have been inappropriate blocking of nominees.

The only filibuster which we can find is the one on Abe Fortis for Chief Justice of the United States Supreme Court, which is hardly a judgeship for the court of appeals.

I say to my colleagues on the other side of the aisle, the Democrats on the Judiciary Committee, and the Democrats generally, we have to come to some accommodation. We have to come to a judicial protocol so we consider the issues on the basis of merit and qualification without politicizing and without looking for people who agree with us philosophically.

I may come back to speak later, but I wanted to speak at an early point in this proceeding because of my participation in the confirmation hearings of some seven Supreme Court nominees and hundreds of lower Federal court nominees. I hope we will take Estrada out of politics and confirm him.