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Floor Statement - Nomination of Miguel A. Estrada

Location: Washington, DC

Senate Floor Statement of Senator Sessions

Nomination Of Miguel A. Estrada

I would like to say one thing about this issue of ideology. We had hearings on it. I know Senator Schumer advocated that we ought to consider ideology—I guess he meant politics—of the nominee. Some of my friends across the aisle asked: Why do Republicans nominate Republicans and Democrats Democrats, if ideology doesn't matter?

We voted for those nominees. President Clinton had confirmed during his tenure as President of the United States 377 Federal judges. This Senate voted down one judge. That is all we voted down on the floor of the Senate. None were blocked in committee. All were voted out of committee, unless they had objections from home State Senators and came up until the last of the administration. And 41 judges had been nominated and were pending either in committee or on the floor when President Clinton left office. Comparing that to when President Bush left office and the Democrats controlled the Senate, there were 54 nominees pending and unconfirmed.

I think all of us need to take a deep breath and to remember that the judiciary is made up of human beings. They are appointed by the President. Our President believes in judicial restraint. He believes that judges should not enact political agendas from the bench. That is the criteria he has used—that and excellence and integrity. Miguel Estrada, probably as much as any nominee we have ever had, represents excellence, integrity, and experience that would qualify him for the job. Indeed, he unanimously won the highest rating from the American Bar Association, "well qualified."

But I will just say that we did, in fact, vote overwhelmingly for President Clinton's judges--377, and one we voted down. Only 41 were left pending when he left office, which is well within the tradition of this Senate.

Frankly, if people get nominated late, they don't have time for hearings. Sometimes the Senate will think, let's see how the election comes out and leave some hanging. That has always happened here. That can be criticized. But we do that. What we are seeing now is a slowdown of nominees at the beginning of the process.

I also note that as we considered these nominees we had hearings on the burden of proof. A group of liberal professors met with the Democratic leadership soon after President Bush was elected President. They made a proposal that the ground rules of judicial nominations should be changed. They didn't propose it while President Clinton was nominating his nominees, many of which were ACLU members, and many of which were strongly pro-abortion, and those kinds of things. They didn't raise that then. But as soon as the election was over, they proposed changing the ground rules, according to the New York Times report of that event. One of the things was that they would consider ideology. Another one was that they would change the burden of proof—that for the first time in history the burden would be on the nominee to somehow prove that they were worthy of the appointment instead of having the Senate review the presumptive power of the President to make the nominee and then if disagreeing object to them. That was a big deal. We had hearings on that in the court subcommittee of the Judiciary, of which I am a member.

Senator Schumer was an advocate of both of these positions.

But the hearings he held were fair, and we had an interesting debate about it.

I will just say, being the ranking Republican during that time, that the witnesses and the evidence we took to me clearly did not support changing the ground rules. People such as Lloyd Cutler, who was counsel to the White House under Presidents Carter and Clinton, opposed that. He believed that nominees should be given also the presumption of confirmation. I thought it was pretty successful in how we handled it, and that the evaluations we considered on the issue should not be changed. The rules ought not to be changed to going to a different way of considering nominations.

Senator Hatch—I have to agree, and I think my colleague, Senator Leahy, would agree with this—set forth a principal position for evaluating judges. He said we should consider judicial philosophy. He did not say we should consider their politics. He talked about judicial philosophy and the danger. The issue that concerned him and concerned most Americans was the question of judicial activism. This was a philosophy taught in law school for many years. I think maybe hopefully that it is a little less prominent today than it was 15 or 20 years ago—that good judges shove the envelope, good judges should be activists, they should promote good causes and use the power of their office to further causes which they believe are just and to strike blows for the poor, and that kind of thing. It was a strong philosophy.

But the truth is that is a dangerous philosophy. When you are talking about a lifetime appointment of a person to the Federal bench, they should understand that they are not empowered to render rulings that go beyond the plain meaning of the law. They should not render rulings that twist the meaning of words—giving words new and different meanings than were intended when the Congress passed legislation, or when the Constitution was written. That is a very important issue to me.

On this question of activism, when you give an unelected judge and an unelected court lifetime appointments with no accountability to the people, the power to redefine the meaning of words and to change historic understandings of our clauses and phrases in our statutes and in our Constitution, we have diminished democracy because they are democratically accountable. If we changed the law, they can vote us out of office. The next group of Senators or Congressmen can change the law if we vote badly. But if they declare that the Constitution says you can't do this or you must do that, then it is much, much more difficult to deal with.

Certainly, in this Congress we do not want to impeach judges because we disagree with their opinion. What we need are judges on the bench who are honorable, intelligent, capable, and who understand their role, which is to enforce the law as written.

And that is the kind of judge we ought not have fear of, as one witness said.

Why should we fear a judge who shows restraint? Our liberties are not at risk by a judge who shows restraint. Our liberties are at risk when we have a judge who believes they have the ability to go beyond what statutes say and to do what they think is right. You have heard them say: Well, the legislature would not act, so the judges had to act. That is not legitimate. If the legislature did not act, that is a decision of the legislature, a decision not to act. It is no less valid than a decision by a legislature to act on a matter.

Judges ought to follow the law as written. They ought to understand the great power of that branch of Government. They ought to be independent. They should strike down laws that are unconstitutional. That is not being activist. If a law is in violation of the Constitution, a conservative or liberal judge, I hope, will strike it down. We have accepted that since Marbury v. Madison, since virtually the beginning of this country. But that is not activist.

What is activist is to misrepresent what the Congress intended, to twist the meaning of the words of the Congress, or to alter the meaning of the words of the Constitution to promote a short-term political agenda. I really think that is our problem. Activism can be defined in a number of ways, but it is quite different from a person's political philosophy.

To me, the high water mark of judicial activism was when we had two members of the U.S. Supreme Court dissent on every single death penalty case. Their dissent was, they believed the death penalty was cruel and unusual punishment and the Constitution prohibits the imposition of cruel and unusual punishment. They said, according to the changing standards they live in today, this was no longer compatible with humane or legal systems or modern thought, and therefore they just found it cruel and unusual to execute anyone by any means, and therefore the whole death penalty statute should be struck down.

The reason that was particularly ill advised, in my view, is that at the time the Constitution was adopted, it had the cruel and unusual punishment language in it but it also had six or eight references in an approving way to a death penalty. They talked about capital crimes and what the rules should be in a capital crime. And capital crimes are death penalty cases. They said life, liberty, and property cannot be taken without due process of law—you can't take life. That means a death penalty.

Every State in the Union at the time the Constitution was written had a death penalty, and so did the Federal Government have death penalties. So for those two judges to actually dissent in case after case after case, to me, was merely imposing their personal views at one moment in time over the established will of the legal system that had been from the beginning. It is also contrary to the views of the majority of the States in the United States. And the polls have shown—if they want to go to evolving standards of decency that the American people oppose the death penalty—that, in fact, overwhelmingly they favor the death penalty. So I think we do need to watch that.

One of the big issues we have before us, as we consider President Bush's nominees, is: Are we looking to have people on the bench to further our political agenda, or are we just looking for a neutral arbiter, someone who can evaluate the cases between litigants and make a fair and just rendering of an opinion on it? That is what it is all about.

One of the things that was raised in complaint about Miguel Estrada was he would not answer all their questions about his views on cases and lawsuits, and so forth. They said he would not produce his internal memoranda when he was a part of the Solicitor General's Office of the Department of Justice. Every living former Solicitor General of the United States, Republican and Democrat, to my knowledge, has written that he ought not to do that. Lawyers ought to be encouraged to write to their clients, the Department of Justice superiors, and give their opinions.

Let me add one thing about that issue. The memoranda that he wrote were not to John Mitchell. The memoranda that he wrote were for Janet Reno and the Clinton Department of Justice. He was in the Solicitor General's Office during that time. And he was evaluated and given the highest possible evaluation by the Clinton Department of Justice attorneys. One of them specifically noted in that evaluation that he followed the procedures and policies of the Clinton Department of Justice. So I do not see how it can be suspected that he was writing right-wing extremist memoranda within that Department of Justice while having the kind of respect and high evaluations that he had. So I believe that is important.

There is a real reason that judicial nominees—and I know the Presiding Officer is a lawyer and understands these issues—why someone thrown into a hearing ought to be reluctant to answer questions about complex cases when we have a hearing on the confirmation of a nominee to the Federal courts of the United States. If they are confirmed, they will be given important cases on which to rule. I hope and I pray they will spend many hours reading the briefs of the parties, reading personally the major cases in the country that deal with that issue, and they give it sincere thought and prayerful consideration before they render a verdict. That is what we want.

To throw somebody in a hearing and to start asking them how they are going to rule on this matter or that matter is improper. And asking them that would bind them, if they got in. In other words, let's say that they said: Well, I favor this, Mr. Senator; I hope that makes you happy; and I agree with you. And then they become a judge, and they get a stack of briefs, and they start reading the opinions, and they come back out with the belief that that is wrong. What have they done then? No. The history of our confirmation process and the strong opinion of the American Bar Association, an independent arbiter in these matters, is that they should not be lured into expressing opinions on cases that are likely to come before them on the bench. That is so fundamental and so sound a principle that I cannot imagine anyone would suggest it be changed.

Lloyd Cutler, White House Counsel to Presidents Clinton and Carter, wrote this:
Candidates should decline to reply when efforts are made to find out how they would decide a particular case.

That was his testimony in our hearing as we discussed these issues in the Judiciary Committee. That certainly is correct to me. I believe that is sound policy, whether we have a Republican President or a Democratic President. I do not recall that Senator Hatch ever insisted a judge tell him how he was going to rule.

My good friend Senator Leahy, he likes to talk about the Federalist Society and Senator Hatch making a speech at the Federalist Society. They take no position over any of these legal issues. They are a forum for debate. Most of the members, perhaps, believe in a restrained judiciary, but they have a lot of different ideas and vigorous debate, and they publish articles that disagree with one another.

But we confirmed a host of Federal judges under President Clinton who were members of the American Civil Liberties Union. You may say: Well, you know the American Civil Liberties Union. They do some good work. I don't think we should just vote against them for that reason.

And we didn't. We confirmed almost all of them. As a matter of fact, I am not sure any of them who were members did not get confirmed.

Look at the Web site of the ACLU. It takes positions on issues. The ACLU believes there should be total separation of church and State. I am sure they agree with the proposal that we ought to take "under God" out of the Pledge of Allegiance. They believe in the legalization of drugs. They believe pornography laws should not be on the books and are unconstitutional. They believe even that child pornography laws are unconstitutional. That is a stated position.
Out of deference to President Clinton's nominees and his power and prerogative of appointment, we confirmed a bunch of them who were members of the ACLU, one of whom was a litigation committee chairman for the ACLU. Others had been State directors of the ACLU.

What did we do? We asked them in the hearing: Do you personally support all those views? They would usually say they didn't.

We would say: Well, whether you agree or not on drug legalization, let me ask you this: If we pass a law that says drugs are illegal, will you enforce it? Will you take your office as judge and use it to undermine the established law of the land? And they would all say: We will enforce the law.

That is how they came to be confirmed. I hope and trust to this day they are complying with that. Our system would not work were it otherwise.

I reiterate my growing admiration for Miguel Estrada's capabilities. He came here as a teenager, was an honors graduate, the highest possible honors at Columbia College. He went to Harvard Law School where he finished at the top of his class and was chosen editor of the Harvard Law Review. For a graduating law senior from a law school to be editor of the Law Review is one of the highest, probably the highest, honor that can be received. He was chosen that by his fellow members.

He didn't clerk for a Second Circuit Court of Appeals judge. They say he doesn't have judicial experience. He sat at the right hand of a Federal circuit judge, doing the kind of work he will be doing as a judge today, for 2 years. Not only that, he was such an astoundingly qualified and capable young lawyer, he was chosen to be a law clerk for Justice Anthony Kennedy on the Supreme Court of the United States. Anybody who knows anything about the legal profession knows being chosen as a law clerk by a Supreme Court judge is a great honor, something very few people ever get the opportunity to do. It is considered a matter of great significance.

Of course, Justice Kennedy is considered one of the swing justices on the Supreme Court, not one my colleagues like to talk about as an extreme conservative. That is who he clerked for, and remains close to Justice Kennedy to this day. He is admired by him.

Then he went to the Department of Justice to the Solicitor General's office. The Solicitor General's office is the law firm for the United States before the Supreme Court. It is within the Department of Justice. They prepare the arguments before the Supreme Court, the appellate courts. Of course, that is what Miguel Estrada will be considered for, an appellate court judge, not a trial judge, but an appellate court judge. He did a remarkable job there, receiving the highest possible evaluations by the Department of Justice.

After that, he went into practice with one of the premier law firms in the world in Washington, DC, and was evaluated by the American Bar Association. The American Bar Association takes its evaluation seriously. They do an independent background check. They make the nominee submit a list of their most significant cases. They have to give the names and addresses of the judge who tried the case, names and addresses of the opposing counsel, and maybe even cocounsel, and to summarize the case.

When that is done, the ABA interviews them. They don't interview just their friends. They interview the lawyers on the other side of the cases.

They want to know, was this person a fair litigator; did he understand the law; were his arguments coherent; did he have integrity; did you respect him in the course of this litigation. Out of that evaluation, the American Bar Association unanimously voted he was well qualified for the court of appeals, and "well qualified" is the highest evaluation given.

We are proud of his achievements. President Bush has nominated an extraordinary judge. As I study more about Miguel Estrada and see more of his record, the more confident I am he will be not just a good justice but a great one. I believe that strongly.

I see Senator Kyl is here. We have been going back and forth, so if you were able to allow him to speak at this time, that would be good.

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