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Public Statements

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

Location: Washington, DC

PAGE S2232
Feb. 12, 2003



Mr. KENNEDY. Madam President, I join with my colleagues in drawing attention to the remarks of our new colleague from Missouri speaking on the issue of health insurance, the uninsured and the challenges which are out there for the small business community. This is, as he has very well stated, an extraordinary problem for the reasons he has outlined.

    It is amazing to me that the small businesses in this country continue to try to provide coverage. As we know, in his State as well as mine, they are all paying about 30 percent more in terms of the premiums than larger companies, and in many instances they have a rapid turnover in terms of the companies that are available to them.

    This really is an extremely significant part of the whole crisis in terms of the uninsured. There are a number of different proposals to which we will have a chance to give focus. But I certainly welcome the fact that he selected as his maiden speech the whole issue and question about the uninsured and the challenges that businesses, and small businesses, face. We may have some difference in just how to deal with the issue, but I certainly look forward to working with him and others to see how we can make progress.

    I thank him for his statement and for the fact that he is focusing on an issue that is of such importance to our fellow citizens; that is, the question of the uninsured and how we are going to continue to provide insurance for small businesses.

    Madam President, one of our most important responsibilities as Senators is the confirmation of federal judges. These are lifetime appointments. Long after we have served our Senate terms, the judges nominated by the President will continue to interpret the Constitution and federal laws. A President's nominees are an enduring legacy that will affect the life of our country and the lives of our constituents for many years to come.

    The important work we do in Congress to improve health care, reform public schools, protect workers rights, and ensure enforcement of civil rights means less if we fail to fulfill our responsibility to provide the best possible advice and consent on judicial nominations. Tough environmental laws mean little to a community that can't enforce them in our federal courts. Civil rights laws are undercut if there are no remedies for disabled men and women. Fair labor laws are only words on paper if we confirm judges who ignore them.

    For all of these reasons, we must carefully review the qualifications of federal judges, particularly nominees to the DC Circuit. Because the supreme Court hears relatively few cases, the appellate courts are frequently the courts of last resort for millions of Americans. And, of those appellate courts, the DC Circuit is one of the most important. It has a unique and prominent role among the Federal courts, especially in interpreting administrative law, and it has exclusive jurisdiction over many laws affecting the workplace, the environment, civil rights, and consumer protection. For the most vulnerable among us, the DC circuit is often the final stop on the road to justice.

[Page S2280]

    Given its location and jurisdiction, the D.C. Circuit has often decided important cases involving separation of powers, the role of the federal government, the responsibilities of Federal officials, and the authority of Federal agencies. In the 1960s and 1970s, the DC Circuit had a significant role in broadening public access to agency and judicial proceedings, expanding civil rights guarantees, overseeing administrative agencies, protecting the public interest in communications regulation, and strengthening environmental protections.

    In the 1980s, however, the DC Circuit changed dramatically because of the appointment of conservative judges. As its composition changed, it became a move conservative and activist court—striking down civil rights and constitutional protections, encouraging deregulation, closing the doors of the courts to many citizens, favoring employers over workers, and undermining federal protection of the environment.

    In the 1960s and 1970s, the DC Circuit expanded public access to administrative proceedings and protected the interests of the public against big business. For example, the court enabled more plaintiffs to challenge agency decisions. It held that a religious group—as members of the listening public—could oppose the license renewal of a televisionstation accused of racial and religious discrimination. It held that an organization of welfare recipients was entitled to intervene in proceedings before a Federal agency. No longer would these agencies be able to ignore the interests of those they were supposed to protect.

    But in the 1980s, with the ascent of conservative appointees, the DC Circuit began denying access to the courts. It held that a labor union could not challenge the denial of benefits to its members—a decision later overturned by the Supreme Court. It held that environmental groups are not qualified to seek review of EPA Standards under the Clean Air Act. These decisions are characteristic of the DC Circuit's flip-flop in the 1980s. After decades of landmark decisions allowing effective implementation of important laws and principles, the DC Circuit is now creating precedents on labor rights, civil rights, and the environment that will set back these basic principles for years to come.

    In the 1970s and early 1980s, the DC Circuit advanced the cause of environmental protection. In this period, the court interpreted the Clean Air Act in ways consistent with Congress' intent. In Lead Industries Associations v. EPA, the court held that the EPA cannot consider economic costs to industry in setting air quality standards, because Congress had made health the paramount concern in setting these standards.

    Decisions in leaded gasoline cases also significantly advanced the effort to reduce air pollution and protect people—particularly children in cities, from the harmful effects of automobile exhaust. In addition, the court took strict action when it upheld the ban on the manufacturer and sale of the pesticides DDT, heptachlor and chlordane.

    But in the mid-1980s, conservative judges on the DC Circuit began cutting off access to the courts for environmentalists and injected an anti-environmental point of view into decision after decision, regardless of even Supreme Court precedents. In American Trucking Associations v. EPA in 1999, the DC Circuit issued a harsh decision denying the EPA the authority to establish health standards for smog and soot. That decision was unanimously reversed by the Supreme Court. In another notorious decision, Sweet Home Chapter of Communities for a great Oregon v. Babbitt, it struck down habitat protections for endangered species. This decision also was reversed by the Supreme Court.

    When Congress passed the National Labor Relations Act, it guaranteed workers the rights to join a union without discrimination or reprisal by employers, and to bargain with employers over the terms and conditions of employment. The National Labor Relations Board interprets and enforces the act and reviews appeals of decisions by administrative law judges. NLRB decisions are appealable to the circuit court, where the unfair labor practice is alleged to have occurred, or here the employer resides or transacts business, or in the DC Circuit. As a result, the DC Circuit is always available as a forum to challenge decisions of the board.

    In 1980, the DC Circuit fully enforced the board's decision 83 percent of the time, and at least partly enforced the board's decision in all the other cases. By the year 2000, when the court had a 5-to-4 Republican majority, including a solid majority of Reagan/Bush appointees, the DC Circuit enforced in full only 57 percent of NLRB cases and enforced at least part of the board's decisions just 70 percent of the time. These enforcement statistics put the DC Circuit significantly below the national average of an 83.4 percent enforcement rate for the board in all the courts of appeals.

    Given these statistics, it is not surprising that the DC Circuit has become the circuit of choice for employers trying to overturn NLRB decisions. In 1980, the DC Circuit heard only 3 percent of the NLRB appeals heard by the circuit courts. The DC Circuit ranked next to last of all the circuits. Only the Tenth Circuit heard fewer cases.

    As the Reagan/Bush effect on the DC Circuit took hold, the court became increasingly attractive to industries, and the court;'s share of NLRB cases steadily rose. By the year 2000, the DC Circuit ranked first among all circuit courts in the percentage of NLRB cases herd by those courts. Almost one in five cases—18 percent—were filed in the DC Circuit, and employers brought by far the largest number of these cases.

    The DC Circuit's willingness to overturn National Labor Relations Board decision is deeply troubling because of the precedents being established. In Freund Baking Co. v. NLRB, it reversed the NLRB and set aside a union election because the court felt that a wage and hour lawsuit brought on behalf of several workers shortly before the election interfered with a fair election.

    In Macmillan Publishing. Co. v. NLRB, the board had overturned a union representation election, finding that a company prevented a fair election by distributing a leaflet telling employees to vote against the union or risk losing a previously announced wage increase. The DC Circuit reversed the board's action.

    The DC Circuit's hostility to the NLRB, to the detriment of workers and their unions, is also illustrated in other cases dominated by Reagan Bush appointees. In International Paper Co. v. NLRB, the court overturned the board's decision and held that the company's permanent subcontracting of employees' job during a lockout was an unfair labor practice. In Detroit Typographical Union v. NLRB, the court overturned the NLRB's determination that Detroit News and Free Press had committed an unfair labor practice when it unilaterally implemented a merit pay proposal immediately prior to the beginning of a 19-month strike by newspaper employees. In Pall Corp. v. NLRB, the court overturned the board's determination that it was an unfair labor practice for an employer to unilaterally revoke a contract provision on ways for the union to obtain recognition at other facilities.

    The DC Circuit also vacated a decision by the board to include handicapped workers at a Goodwill production facility in the same bargaining unit as other employees. The court held that the handicapped workers were not employees. And in C.C. Eastern v. NLRB and North American Van Lines v. NLRB, the court overturned the board's ruling that truck drivers are employees. Instead, the court held that the drivers are independent contractors unprotected by the National Labor Relations Act.

    Immediately after Congress passed the Occupational Safety and Health Act of 1970, the DC Circuit issued major decisions that protected workers from job-related hazards. The DC Circuit issued a landmark ruling in United Steelworkers of America v. Marshall, which upheld OSHA's standard on lead in the workplace. This case continues to be important, because it upheld basic principles and protections that the agency went on to use in many other workplace safety standards.

    The DC Circuit also held the OSHA Administrator to a high standard in implementing the law. In 1983, the court ordered OSHA to expedite rulemaking on ethylene oxide, a highly toxic substance used to sterilize medical equipment. In a subsequent case, the court sent an ethylene oxide standard back to OSHA for failure to adopt a short-term exposure limit that would have made the standard more protective.

[Page S2281]

    In 1987, after unacceptable delay by OSHA, the court ordered the agency to issue a field sanitation standard requiring toilets and drinking water for farmworkers, to protect them from disease.

    Today however, employees no longer see the DC Circuit as a court in which to bring worker safety and health actions. Despite the court's earlier willingness to hold OSHA to its statutory mandate to protect workers, workers are turning elsewhere for relief, and big business is counting on the DC Circuit for assistance. It is no accident that the National Association of Manufacturers and other trade associations who filed a lawsuit to overturn OSHA's ergonomics standard chose the DC Circuit to bring their petitions for review.

    In decades past, the DC Circuit was in the forefront of upholding Federal protections for minorities and women. One of the most notable cases on racial discrimination was a 1969 decision upholding measures to end the overcrowding and segregation of schools in the District of Columbia. In another important decision, the court held that a written examination had a disparate impact on African Americans applying for positions in the police department. The court held that unless the test had sufficient relationship to job performance, it violated the Constitution.

    The DC Circuit also contributed important precedents for women seeking justice and equality. In Laffey v. Northwest Airlines, female flight attendants were assigned to the all-female "stewardess" classification, while men who performed essentially the same job were paid more and called "pursers." The female flight attendants sued Northwest Airlines for sex discrimination. The district court held that Northeast Airlines had violated Federal law, and the DC Circuit upheld the argument that the Equal Pay Act extended to identical jobs, and held that it required equal pay for "substantially equal" jobs.

    This principle was emphasized in Thompson v. Sawyer, involving a claim of sex discrimination by employees of the Government Printing Office. The court held that jobs may be "substantially equal," even it they involve work on different machines or equipment, as long as the skills, effort, responsibility and working conditions are the same.

    All of these decisions are advancing the cause of equal pay for women in the workplace, enormously important decisions. Because of these decisions, we see further compliance by other companies, knowing that this is the law and it has to be respected.

    In the late 1970s and mid 1980s, in the area of sexual harassment, the court held in a series of cases that sexual harassment in the workplace violates title VII even when there has been no loss of tangible job benefits. The court also held an employer can be held liable for sexual harassment by a supervisor, even if the employee is unaware of the supervisor's actions.

    These cases were all important steps on civil rights, enormously important to the kinds of conditions in the workplace, particularly for women on equal pay and also in terms of the issues on sexual harassment. This was major progress in decisions made by the DC Circuit.

    People say: Why are we so concerned about this particular nominee? I have been trying to review for the Senate, this afternoon, these various areas. Whether we are talking about the environment, whether we are talking about worker safety, whether we are talking about issues on women's rights—equal pay, freedom from harassment—all of these judgments and decisions that have been made by the DC Circuit have advanced the cause of greater protection and greater equality for the citizens in the workplace.

    These cases were all important steps on civil rights. But when more conservative judges were appointed, the tide began to change. In 1973, the DC Circuit had required the Federal Government to take steps to end segregation in educational institutions receiving Federal funds. But a decade later, by a 6-to-4 vote, the DC Circuit held in Adams v. Richardson that the plaintiffs could not obtain judicial review of the Federal Government's settlement with higher education institutions, despite the Government's abandonment of its own desegregation criteria.

    The workers and the firms affected by such decisions are well aware that the DC Court of Appeals is a powerful court. This fact is not lost on the current administration. For over two decades, Republican administrations have worked diligently to reshape this court and other courts. Current judicial nominees are clearly being chosen for their ideological beliefs.

    None of us should have any doubt that the Bush administration is intensely pursing this goal today.

    The President's nominees to the circuit courts are among the most conservative lawyers and judges in the country. This administration is doing all it can to reshape the Federal judiciary for a generation or more to come in its own conservative image. In doing so, the administration is undermining the enforcement of important environmental, labor, worker safety, immigration, and civil rights laws while advancing harsh new policies.

    If this administration has its way, we will soon be drilling in the Arctic National Wildlife Refuge, developing and exploiting wetlands and waterways protected by the Clean Water Act, and undermining policies that protect our environment.

    If this administration has its way, employees will have fewer labor and workplace protections. If this administration has its way, we will see the continued erosion of civil rights laws.

    It is obvious that Mr. Estrada has been nominated to a court that is overturning important precedents and moving farther and farther to the right—a court that disregards congressional intent and the letter and spirit of the law it has a duty to respect—courts like the current administration, more interested in serving big business than in serving justice.

    As I reviewed just briefly why this nominee is so important, we get asked why is this particular nominee so important? As I mentioned, it is the DC Circuit. It is making and has made these judgments time and time again in protecting individuals and the environment and protecting workers. We have seen a significant shift in recent times. What we are trying to find out is what the nominee's views are in the general areas I have mentioned in which this court has such important jurisdiction.

    We could get no answers on the issue of workers rights, no answers on the issue of civil rights, no answers on the issue of the environment, no answers on the issue of the broad sweep of different questions that come in terms of administrative agencies and the importance, what kind of precedence, what kind of latitude they give to administrative agencies. No, we are not entitled to those answers at all. Absolutely none. We just are denied any kind of opportunity to hear any response as to a court of this importance. We are entitled to hear the nominee, not for his specific outcomes of a particular case but to show an understanding and a grasp and an awareness of the importance of the laws and a sense of the type of commitment he has in terms of fundamental constitutional protections.

    I urge my colleagues to heed the warnings of the many Latino organizations and leaders who have raised concerns about Mr. Estrada's nomination. As 52 Latino labor leaders have written:

    America's working families look to the federal courts to protect our rights at work, to stop unfair labor practices by employers, and to ensure that employers respect laws regarding fair pay and equal treatment on the job.

    Of all the federal courts, none—other than the U.S. Supreme Court—is more important to working people than the U.S. Court of Appeals for the District of Columbia Circuit. It is in this court that the legal rights of working people are won and lost. After a careful review of Mr. Estrada's record, on behalf of the working families of America, we have decided to oppose the nomination of Miguel Estrada.

    These concerns are shared by the United Steelworkers of America, the UAW, Community Rights Counsel, Defenders of Wildlife, Earth Justice, the Endangered Species Coalition, the Environmental Defense Fund, the Environmental Working Group, Friends of the Earth, the Sierra Club, the Wilderness Society, the Mexican American Legal Defense Fund, the Puerto Rican Legal Defense Fund, the Congressional Hispanic Caucus, the Congressional Black Caucus, and many other organizations.

[Page S2282]

    Earlier today we had meetings with the leaders of the Hispanic Caucus. They reviewed with us how they have interviewed various nominees over recent years, how they were able to get some kind of a sense, and the degree of support they had given to many other nominees who they had a particular interest in, who had a Hispanic background, and how they interviewed this nominee.

    I will take some time tomorrow to review in some detail with the Senate their conclusions and their observations. They are the ones who speak for the Hispanic community. They are the ones who understand the hopes and dreams of so many of our Hispanic brothers and sisters. They are the ones who have, through life experience, a keen awareness and understanding about the importance of justice.

    But some of the statements they made this afternoon, which I found so compelling, were the fact that when the dust settles on the Presidency, whether it is one party or the other, when the final action is taken in the appropriations and the legislative branch, the one place the Hispanics have historically been able to look to and have a sense of confidence has been the American judicial system. They consider it sacrosanct in terms of the types of challenges they are facing daily in our society. They challenge us to preserve that kind of equality.

    They reviewed in careful detail, not just for us but for Americans, in the form of our meeting this afternoon with the press exactly why they are so strongly opposed to this nominee.

    I stand with these groups and the millions of Americans they represent and urge the Senate to reject the nomination.

    Mr. President, I see my friend and colleague from New Mexico. I would like to, if I may, proceed for about 3 or 4 more minutes on a different subject, but one I know he is very much interested in. I think it is important to bring to the attention of the Senate. That is the outcome of the omnibus 2003 budget in the area of education.

    We are going to have the final budget conference report in the next several hours, but there are a number of parts of it that effectively have been closed. It is important, since it affects the families in this country who are concerned about education, that we take a moment to review the positive outcome that has taken place in the omnibus 2003 budget that marks a victory for parents and teachers and principals and schoolchildren across the Nation.

    When the omnibus 2003 spending bill is reported out of conference later tonight, it will include an education budget increase that is eight times President Bush's request. For the second time in 4 weeks the Congress will reject President Bush's inadequate education budget and insist on increased resources to carry out school reform. And for the second time in 4 weeks, Republicans and Democrats in Congress will reject the administration's ongoing drive to divert scarce public school funding to private school vouchers.

    I see the Senator from Maine who, with our friend and colleague from Connecticut, during the authorization spoke so eloquently about the importance of funding of title I. We made important progress in including approximately 500,000 more children who would be eligible for title I as the result of the omnibus bill.

    The final year budget which effectively will provide resources that will be available to the school systems this spring will provide 3.2 billion in education over the previous year and 2.8 billion over President Bush's budget. Title I, the key school reform program, the No Child Left Behind, would be increased by $1.4 billion, helping half a million more needy children to be fully served. In my State of Massachusetts, 46,000 more children will be served. IDEA will increase by $1.4 billion, putting us a step closer toward fully funding the program as promised. My own State of Massachusetts will see a $32 million increase in special education funding.

    Support for improved teaching quality and reducing class size will increase by $100 million—not nearly enough, but we are going in the right direction. We will improve the quality of 24,000 more teachers across the country. Programs that help English language learners master English will increase by $25 million and will help 37,000 more children learn English.

    We have made strong steps toward meeting the promises of full funding outlined in No Child Left Behind and NIDA. But it is not enough. Teachers and students need more support. Teacher shortages are getting worse, class sizes are increasing, State deficits are skyrocketing. So we have a good deal of work to do. But as a result of the decisions that have been made recently in the Senate and in the conference report, there is some good news on the way.

    I thank my friend and colleague from New Mexico for permitting me to finish.

    I yield the floor.

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