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Estrada Nomination

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Date:
Location: Washington, DC

Mr. CRAIG. I thank the Presiding Officer.

Mr. President, I listened to my colleague from South Carolina for a good number of minutes and have always been fascinated by his review of the budget and budget processes.

I am also always frustrated by the reality of a general fund budget, in a comprehensive budget policy under which we operate, and the fungibility of moneys, and the broad general system in which we take Social Security moneys, once appropriately registered in the trust funds of Social Security, and then it being moved into the general fund of our country; that, in fact, Social Security money is spent and bonds are taken out or loans are made against the trust funds and interest is bearing and money is replaced. So to suggest that trust fund moneys cannot be spent once they have been appropriately accounted for is a frustration.

But let me stop there because I came to the floor this afternoon to once again speak about Miguel Estrada and his nomination and, of course, where the Senate is at this moment in time, which is not only important for all of us but important for the judiciary of our country, that we are able to bring to the floor of the Senate highly qualified men and women who have been appropriately vetted by the administration—no matter what administration it is—and that the nominations of these people are reviewed by the Judiciary Committee and then brought to the floor for a vote.

What has gone on here for well over 4 weeks is the denial of that opportunity to vote. We did have a vote last week. It was a cloture vote. It is part of the inside ball game of the Senate that oftentimes those who are observers of what we do do not understand.

We got 55 votes, if you will, for Miguel Estrada. My goodness, that is 50 percent plus 5 of a 100-member body. Surely, that would confirm this fine judicial nominee.

Quite to the contrary, it was a cloture vote. Under a cloture vote, with a supermajority rule in the rules of the Senate, it simply says you have to get 60 before you have the right to get 50 plus 1 of those present and voting.

That has to be awfully confusing for anyone listening or observing. Clearly, the rules of the Senate are to make sure that our Constitution is upheld, or at least a prescription of our Constitution, that requires that all States enter in and are members of the United States under our Constitution and are equal in the Senate. Therefore, we have historically, and appropriately so, erred on the side of protecting the minority. And that, of course, is the cloture process: to make sure that a supermajority finally decides it is time to vote on an issue.

I hope that over the course of the next several weeks we can gain cloture and that we can get to the real vote, the honest vote, the fair vote, the appropriate vote of 50 plus 1 of those present and voting for the confirmation of Miguel Estrada under the advice and consent clause of our Constitution.

Let me recap, for a few moments, some of the arguments we have heard on the floor of the Senate over the last several weeks about this fine nominee: We are asked, if you will, to rubberstamp everyone the President sends up, and we should not inquire, we should not be probative, we should not look into the individual's background.

Well, that is an interesting argument, but it echoes in such a hollow way on the floor of the Senate when you look at the reality and the fact that Mr. Estrada has been before the Judiciary Committee for over 2 years and that we have had now a very extensive filibuster—or shall I say extended debate—that has talked about almost every aspect of Miguel Estrada's professional life—his career and his life in general; that he was thoroughly investigated by the FBI, and those records were brought to the Judiciary Committee for all of us to examine, and somehow we are no "rubberstamping," after literally hundreds and hundreds of pages of material, and the process of this investigation is now compiled in the Judiciary Committee on Mr. Estrada.

Rubberstamping? I think not. Rubberstamping is not when any Senator can vote how he or she wishes. We are not suggesting that everybody vote yes. We are suggesting that everybody vote—yes or no, up or down—and that Mr. Miguel Estrada be given his day, as should the President be given the right to have his or her nominees brought to the floor for an up-or-down vote.

I say to my colleagues on the other side, that ain't a rubberstamp; that is doing what you are asked to do when you are sworn in as a Member of the Senate—to vote up or down on the issue, face the tough votes, face the easy votes. I have one job here, as do 99 other Senators, and that is to come to the floor of the Senate and vote. That is what my State asks. That is the role I play for my State. That is all our President asks. I am quite sure that is what Miguel Estrada would like.

Our colleagues have complained that Mr. Estrada is a "blank slate;" that there is not enough information for Senators to be able to make a responsible judgment about his ability to serve.

You have heard my colleague from South Carolina say not all the questions have been answered. Well, Miguel Estrada has literally called every Senator's office and said, "I will come and visit with you and I will respond to your questions." But, no, that is not good enough. We don't want him in our office; we want him before the committee again responding to the questions that the committee would choose to ask and, of course, we would like more of the record that he compiled while serving in the Justice Department under both Democrat and Republican Presidents.

It is a very frustrating time we have here when, in fact, that which they argue has been answered not only once but twice or a hundred times over. When you, therefore, compile all of this and analyze the record, there has to be something more than just the background, just the information. I think it is, in fact, the politics of the issue today, and the effort on the part of the far left to cause the Democrat Party to try to deny Miguel Estrada his day on the floor of the Senate in an up-or-down vote with Members present and voting.

Let me talk a little bit about some of the questions asked. I am quoting from a phenomenally comprehensive letter which was sent to the Senate by the legal counsel at the White House. I have it here. It is 15 pages. Counsel to the President, Judge Gonzales, sent this up on February 12. It goes into great detail. I thought for a few moments I would, once again, for the record, talk of some of that detail and some of the answers that both Miguel Estrada has responded to and that Judge Gonzales, legal counsel to the White House, has responded to—only for those who are concerned about the Congressional Record that we compile here to clearly understand that the arguments placed by the other side are so hollow, they have hardly no echo today, because questions have been asked and answers have been given.

Miguel Estrada answered the committee's questions—and this is according to Judge Gonzales. I was not there at the time. I now serve on the Judiciary Committee, but these questions were leveled at Miguel Estrada in the 107th Congress. I was not a member of the committee at that time.

Miguel Estrada answered the Committee's questions forthrightly and appropriately. Indeed, Miguel Estrada was more expansive than many judicial nominees traditionally have been in Senate hearings, and he was asked a far broader range of questions than many previous appeals court nominees were asked.

He goes on to catalog the questions and the answers in the area of rights, privacy and abortion, unenumerated rights.
When asked by Senator Edwards about the Constitution's protection for rights not enumerated in the Constitution, Mr. Estrada replied: "I recognize that the Supreme Court has said [on] numerous occasions in the area of privacy and elsewhere that there are unenumerated rights in the Constitution, and I have no view of any sort, whether legal or personal, that would hinder me from applying those rulings by the court. But I think the court has been quite clear that there are a number of unenumerated rights in the Constitution. In the main, the court has recognized them as being inherent in the right of substantive due process and the liberty clause of the Fourteenth Amendment.

When asked by Senator Feinstein whether the Constitution encompasses a right to privacy and abortion, Mr. Estrada responded, "The Supreme Court has so held, and I have no view of any nature whatsoever, whether it be legal, philosophical, moral, or any other type of view that would keep me from applying that case law faithfully." When asked whether Roe v. Wade was "settled law," Mr. Estrada replied, "I believe so."

That is a pretty straightforward answer. That is as clear as you can get on issues of privacy and abortion. I cannot understand why the other side cannot accept that as a responsible and clear answer.

General approach to judging.

In other words, what is your philosophy? How do you react?

When asked by Senator Edwards about judicial review, Mr. Estrada explained: "Courts take the laws that have been passed by you [meaning the Senate] and give you the benefit of understanding that you take the same oath that they do to uphold the Constitution, and therefore they take the laws with the presumption that they are constitutional. It is the affirmative burden of the plaintiff to show that you have gone beyond your oath. If they come into court, then it is appropriate for courts to undertake to listen to the legal arguments—why it is that the legislature went beyond [its] role as a legislature and invaded the Constitution."

Mr. Estrada stated to Senator Edwards that there are 200 years of Supreme Court precedent and that it is not the case that "the appropriate conduct of the courts is to be guided solely by the bare text of the Constitution because that is not the legal system that we have.

In other words, he was talking to that precedent in relation to the strictness of the Constitution.

When asked by Senator Edwards whether he was a strict constructionist, Mr. Estrada replied that he was "a fair constructionist," meaning that, "I don't think that it should be the goal of the courts to be strict or lax. The goal of the court is to be right. .    .    . It is not necessarily the case in my mind that, for example, all parts of the Constitution are suitable for the same type of interpretive analysis. .    .    . [T]he Constitution says, for example, that you must be 35 years old to be our chief executive. .    .    . There are areas of the Constitution that are more open-ended. And you adverted to one, like the substantive component of due process clauses, where there are other methods of interpretation that are not quite so obvious that the court has brought to bear to try to bring forth what the appropriate answer should be.

That is an understandable answer when the law is as specifically as 35 years; that is interpretive. When the Constitution gives you the opportunity for some interpretation, of due process, then of course that goes to the fairmindedness of the individual judge involved within the framework of precedent so ruled.

When Senator Kohl asked him about the environmental statutes, for example, Mr. Estrada explained that those statutes come to court with a "strong presumption of constitutionality." In other words, there is a presumption that those laws that the Congress of the United States passes are constitutional by their passage, only later to be tested in the courts to find out how constitutional or if they can withstand that test.

In response to Senator Leahy, Mr. Estrada described the most important attributes of a judge:

The most important quality for a judge, in my view, Senator Leahy, is to have an appropriate process for decisionmaking. That entails having an open mind. It entails listening to the parties, reading the briefs, going back beyond those briefs and doing all of the legwork needed to ascertain who is right in his or her claims as to what the law says and what the facts [are]. In a court of appeals court, where judges sit in panels of three, it is important to engage in deliberation and give ear to the views of colleagues who may have come to different conclusions. And in sum, to be committed to judging as a process that is intended to give us the right answer, not to a result.

In other words, not to what had been planned or anticipated but the right answer in relation to the law and the Constitution.
And I can give you my level best solemn assurance that I firmly think I do have those qualities or else I would not have accepted the nomination.

Here, of course, he is talking about his own character, his own makeup, the thinking processes that have allowed Miguel Estrada over the years to rise as far as he has and to be recognized by most as a very brilliant legal mind.

In response to Senator Durbin, Miguel Estrada stated that:

The Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains.

Mr. Estrada indicated to Senator Durbin that he admires the judges for whom he clerked: Justice Kennedy, Judge Kearse, as well as Justice Lewis Powell.

Miguel Estrada stated to Senator Durbin:

I can absolutely assure the committee that I will follow binding Supreme Court precedent until and unless such precedent has been displaced with subsequent decisions by the Supreme Court itself.

That is an interesting and a very important response to a question that many will argue he has not been asked or he has denied or refused to answer. Let me repeat that. When asked about how he will respond to certain cases brought before the court as it relates to decisions made by the Supreme Court, he said:

I can absolutely assure the committee that I will follow binding Supreme Court precedent until and unless such precedent has been displaced by subsequent decisions of the Supreme Court itself.

In response to Senator Grassley, Mr. Estrada stated:

When facing a problem for which there is not a decisive precedent from a higher court, my cardinal rule would be to seize aid from any place where I can get it. Depending on the nature of the problem, that would include related case law in other areas that higher courts had dealt with that had some insight to teach with respect to the problem at hand. It could include the history of the enactment, including a statute's legislative history. It should include the custom and practice under any statute or document. It should include the views of the academicians to the extent they purport to analyze what the law is, instead of prescribing what it should be. And in sum, as Chief Justice Marshall once said, to attempt not to overlook anything from which aid might be derived.

There is a very open, probative, bright mind responding to that kind of question. You go to the resources at hand to ultimately compile the information from which to make a decision, to make judgment.

In response to Senator Sessions, Mr. Estrada said:

I am firmly of the view that although we all have views on a number of subjects from A to Z, the first duty of a judge is to self-consciously put that aside and look at each case by starting withholding judgment with an open mind and an answer to the parties. So I think the job of a judge is to put all of that aside and, to the best of his human capacity, to give a judgment based solely on the arguments and the law.

Again, straightforward, very clear answers with which I think all should be satisfied.

In response to Senator Sessions, Mr. Estrada stated:

I will follow binding case law in every case. I may have a personal, moral, philosophical view on the subject matter, but I undertake to you that I would put all that aside and decide in accordance with binding case law and even in accordance with the case law that is not binding but seems constructive on that area, without any influence whatsoever from my personal view I may have about the subject matter.

The letter goes on to deal with Miranda, with congressional authority, ethnicity, racial discrimination, right to counsel, congressional authority to regulate firearms—phenomenally complete responses to very critical questions that speak to the mind and the legal training of a tremendous talent whose nomination we now have before us.

Somehow that is not good enough. Somehow our colleagues on the other side, time and again, have said: No, no, we need to go back to the committee to ask the questions. We need now all of the legal drafts and the memos that are a part of Mr. Estrada's record at the Justice Department when he worked there for both Presidents Bush, Sr. and President Clinton and, of course, Democrats and Republicans alike have said those are simply off the record and we cannot go there, nor should we go there.

The question is: Why go there at this time when we now have such a very complete record that speaks to the mind, the temperament, the judgment, the talent of Miguel Estrada? I think the answer is quite simple: We should not.

There is a simpler answer, and it is one we seek and one we have asked our colleagues for, and that is the right for an up-or-down vote on the floor of the Senate. Under the advise and consent clause of our Constitution, I am one who firmly believes that is the responsibility of the Senate, to review, to analyze, to be probative, as we have, but ultimately to bring a President's nominee to the floor for the purpose of a vote, a 50-percent plus 1 vote of those present and voting. I firmly believe that.

We are going to continue to pursue the confirmation of Miguel Estrada, as we must. We can simply not allow a nominee to come to the floor and for those who are in opposition to simply filibuster until all are exhausted and we all retreat into the shadows because no one wants to vote up or down. That is quite the opposite in this case. We clearly do need a vote. We want a vote. Let us not hide behind the supermajority in this instance. That is not an excuse for the ultimate oath of office that we have taken and the responsibility that we have at hand as Senators.

Mr. President, I suggest the absence of a quorum.

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