Floor Statement Regarding the nomination of Miguel Estrada

FLOOR STATMENT REGARDING THE NOMINATION OF MIGUEL ESTRADA

Mr. President, I begin by taking direct issue with the arguments by the Senator from Massachusetts. The advice and consent function set forth in the Constitution has been consistently interpreted for 216 years to confirm Presidential nominations, unless there is a reason not to. That has been the practice. Now we have a new position advocated by the Democrats, saying if there are 41 obstructors, then the Democrats want an equal share in the process of judicial selection.

The Senator from South Dakota raised the consideration that no one on this side of the aisle had spoken up, when in effect the shoe was on the other foot when the Democrats controlled the White House and Republicans controlled the Senate. There were those on this side of the aisle who spoke up and said worthy nominees submitted by President Clinton should be confirmed. I was one of them. We did confirm a number of contested nominations: Judge Richard Paez, Marsha Berzon, Roger Gregory, and others.

So it is true there have been delays when one party has controlled the White House and the other party has controlled the Senate. And Republicans are not blameless in this process. But I submit that in the 107th Congress, with President Bush in the White House and the Democrats in control of the Senate, the process has been carried to great extreme. This year, with the Republicans controlling both the White House and the Senate, we have had the unprecedented position of a filibuster on a judge for the court of appeals.

In the history of the judicial confirmation process, there has been only one prior filibuster, and that was on Justice Abe Fortas, nominated to be Chief Justice. That involved an issue of integrity, and that was a bipartisan filibuster. We had, perhaps, the most bitter contest on confirmation when Circuit Judge Clarence Thomas was up for confirmation to the Supreme Court. Within 50 minutes, let alone 5 minutes, I could not begin to summarize the contest there on the bitterness of the proceedings. Justice Thomas was confirmed 52-48. But no one suggested there ought to be a filibuster. The regular rule was followed. Even though there was a tie vote in the Judiciary Committee, which would not customarily, under Judiciary Committee rules, permit the matter to be advanced to the full body, it did come to the full Senate and there was no filibuster, and Justice Thomas was confirmed.

When the Democrats--and I very much deplore the partisan nature of this debate, but it is a matter of Democrats versus Republicans, and it is my hope we will find a way to solve it. When the Democrats raise issues about Miguel Estrada answering more questions, or raise the contention that his work as an assistant Solicitor General ought to be disclosed, they are, pure and simple, red herrings.

A long litany of nominees have come before the Judiciary Committee who have declined to answer questions and have been confirmed. In the judicial process, judges are not expected to give opinions until there is a case in controversy, until there are facts, until briefs are submitted, until there is oral argument, until there is deliberation among the judges, then a decision is made--not to answer a wide variety of hypothetical questions that are posed in nomination proceedings.

On the confirmation process of Merrick Garland, I asked the question: Do you favor, as a personal matter, capital punishment?

Mr. Garland replied: This is really a matter of settled law now. The Court has held that capital punishment is constitutional and lower courts are expected to follow the rule.

Because of time limitations, I shall not go into detail on that. When Marsha Berzon appeared before the committee, she was asked by Senator Robert Smith about the abortion issue. Marsha Berzon was later confirmed. Marsha Berzon responded that the matter was settled, regardless of what her views were. A similar response was given by Judith Rogers to questions by former Senator Cohen.

With respect to Miguel Estrada's work as an Assistant Solicitor General, seven former Solicitors General wrote to Senator Leahy, laying out the fact that it is of ``vital importance of candor and confidentiality in the Solicitor General's decision-making process that Miguel Estrada's work should not be disclosed.''

I am delighted that we have been joined by a number of Senators from the other side of the aisle. It is my hope that we will yet get five additional Senators who will break the deadlock and we will move to cloture and we will end this debate.

This controversy is poisoning the Senate beyond any question. It is distracting the Senate from other very important business. I hope we will find a way out promptly and ultimately establish a protocol so many days after a nomination is submitted, a hearing by the Judiciary Committee; so many days later, a committee vote; so many days later, floor action; so that regardless of what party controls the White House and what party controls the Senate, the public business will be attended to and the partisanship will be taken out of the selection and confirmation of Federal judges.

I yield the floor.