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Public Statements

Executive Session - Nomination of Miguel A. Estrada

Location: Washington, DC



Mrs. CLINTON. Mr. President, I appreciate the many points made by my colleagues with respect to this nomination. As I have listened to the debate, not having been a member of the Judiciary Committee, I have tried to educate myself on what this is all about. I put myself into the position of somebody at home who maybe just has turned on C-SPAN or is flipping channels and sees us talking about something. They are trying to understand what this is all about.

I thought I would come to the Chamber and perhaps talk a few minutes about what I think it is about and to try to answer some of the questions that might be in the minds of New Yorkers and Americans.

First, it is about the nomination of a gentleman to become a judge on what everyone, regardless of what party you are or where you live in the country or whether or not you are a lawyer, believes is the second most important court in our land. Everybody knows under our system of government the Supreme Court is the supreme court. It is the most important. But as we have gone through many decades of courts hearing cases, of new causes of action for people to be able to bring cases, what has emerged very clearly is that because the Supreme Court cannot take every case that has to be finally resolved one way or the other, many of the most important cases that are really significant to people living from one end of our country to the other are finally decided in the District of Columbia Court of Appeals.

This is the court that sits here, and it has some special jurisdiction about environmental matters and labor matters and energy matters. This is a really big deal court. This really matters. It is not just any court. It is the DC Court of Appeals.

All of our courts of appeals are important and because as you go up the Federal court system, you start with all of the district courts that are in every State and sometimes, depending upon the size of the State and many parts of the State and decisions there, if you are not satisfied with them, get appealed to the courts of appeal. It is like a pyramid. It starts narrowieng. Not everybody who starts a lawsuit in a Federal district court will be able to get to the court of appeals. Even fewer will get to the Supreme Court.

When we face a decision of giving someone a lifetime job, we have to take that seriously. We have to take it seriously whether it is a district court or a court of appeals or the Supreme Court. Actually, that is the way our Constitution set it up.
If the Constitution, which I think is, other than the Bible, the most amazing document the world has ever seen, if the Constitution meant for the President to say OK, this is who I want to sit on that bench, and just pick out any person who the President chose and just send them to the bench, the Constitution would have said that. But that is not what the Constitution says. The Constitution very clearly sets up what we call a balance of power. That is an important concept. That is critical to how successful we have been as a nation. It is absolutely fundamental as to our democracy continuing to function over all these many years because we have a balance of power.

We know human beings are fallible. We know that every one of us is flawed, and people get an idea that they are bigger than they should be; they want more power. And we get this balance of power in our Constitution which has worked extremely well for our country.

Critical to that balance of power is the role that the Senate plays in advising and consenting with respect to the President's nominees for the Federal court. It is right there in the Constitution. This is not something that Democrats or Republicans have made up for the purpose of this debate. It is fundamental to our Constitution.

As a result, those of us who are honored to serve in the Senate—and there haven't been very many over the course of our history; fewer than 2,000 people have sat in this most important deliberative Chamber in the history of the world—are bound by the Constitution. We take an oath to the Constitution. We want to defend and protect the Constitution.
Therefore, when we look at our duties, among our most important duties are advising and consenting when it comes to judicial nominees for lifetime positions on the courts established under our Constitution.

All of us take that responsibility seriously. But whether we are confronted by a nominee to the DC Court of Appeals or certainly, if we are confronted by a nominee to the U.S. Supreme Court, maybe it keeps us up a little longer at night. It makes us feel even more strongly that we have to make sure we are doing the right thing. We have to ask the hard questions. We have to get the information. Because once we sign off on it, that person is there for life.

It would be like somebody hiring someone to do an important job. You want to know that the person you are hiring to be a doctor or nurse in your hospital, or to supervise the construction of your house, that these are people qualified, able to answer your questions, that you confidently believe can get the job done.

That brings us to what we are debating today, a very important court, lifetime appointment, second only to the Supreme Court in the number of important cases decided, rooted in our Constitution where we as Senators, representing the constituents we serve, are required, are duty bound under our Constitution to advise and consent with respect to the President's nominations.

Now, I have voted for many judges since I have been in the Senate over the last 2 years, and those judges are not people, by and large, I ever knew personally or with whom I had any direct dealings. But the Judiciary Committee, which consists of Republicans and Democrats, is charged with the responsibility of doing the work of trying to figure out whether somebody is qualified and whether they should get this lifetime appointment. They are the first of our colleagues to advise and consent, or advise and not consent. I know the members of the Judiciary Committee on both sides of the aisle, and they take that responsibility very seriously.

With respect to Mr. Estrada, it has been a hard task to fulfill the responsibilities entrusted to us in the Constitution to advise and consent because there is no information. It is as though somebody walks into the hospital and says: I want the very best doctor you can give me for the condition that ails me, and I want to know where that person stands on the procedures he is going to use on me; I want to know what he thinks about postoperative treatment, I want to know what drugs he believes are best, and I want to know where he ranks in terms of his belief about whether or not I can be cured. Well, I am sorry we are not going to give you that information. Here is your doctor; you take him.

We are faced with a nominee who has thus far refused to answer legitimate questions about what kind of a judge he would be, where he stands on the great issues of our time and of the past, what his positions are in thinking about these fundamental rights we cherish as Americans, whom he respects or admires on the judiciary already, or with whom he would compare and contrast himself. We cannot get answers to any of those questions. I don't necessarily hold Mr. Estrada responsible for that. I know a little bit about the confirmation process. Having spent some time on the other end of Pennsylvania Avenue, I know he is doing what he has been told to do. He has been told to sit there, don't say anything, don't answer the questions, dodge, duck, don't leave any record, don't let anybody pin you down, and, boy, we are just going to go right through the opening that is given to us and make up this case that will get you on the circuit court.

Well, I suppose that is a strategy, but it is an unconstitutional strategy. It is a strategy that is absolutely contrary to what the Founders intended when they spent all those hot days in Philadelphia writing the Constitution. They expected advise and consent to actually be the responsibility of Senators. How can you advise and, certainly, consent if you cannot even get basic information about where someone you are going to give a lifetime job to stands on all these important issues?

It is not as though members of the Judiciary Committee didn't try. They certainly tried. Led by my colleague and friend from New York, Senator Schumer, they tried every which way they knew. You have already heard this morning from Senator Durbin of Illinois how questions were phrased and, if he could not get an answer from Mr. Estrada, how they would be rephrased, trying to get some information. It was a classic stonewall; there is no information, no record, nothing to which anybody can point.

Now, that puts a Senator in a very difficult position. If you are just going to do what the White House tells you to do, what the President tells you to do, without regard to your constitutional duty to advise and consent, then it is an easy issue; you stand up, salute, and you vote, and that is it. But if you take seriously your constitutional duty, then it is not so easy. I have to go back to New York, and people will say: What kind of a judge do you think this will be on the court that hears all these important issues? I have to say I don't have a clue because we cannot get any information about him. We cannot discharge our constitutional duty to advise and consent.

I know my friends on the other side of the aisle say: Well, there is no information; this man is a blank slate; he has never been a judge; we have no record; he has never been a law professor; he hasn't put a lot of his thoughts down in writing; so you have to take what you see. Here is this gentleman, and you just have to take it on face value that he will fulfill the rather awesome responsibilities for which he has been nominated.

I just don't think that is good enough. I am just amazed that my friends on the other side of the aisle are willing to abdicate the Senate responsibilities embedded in the Constitution, because when you stonewall the Judiciary Committee, when you refuse to answer questions, when you act as if you just came out of nowhere and don't have an opinion on anything, everybody knows that is a charade. Everybody knows that. That is what you were told to do in the White House; therefore, you are sitting there, not giving an answer, because if you gave an answer, even some of the Republicans, people of the President's own party, might be disturbed.

I went back and looked at some of the questions that were asked. I have not been in law school for a very long time, but I cannot imagine any law student who, with a straight face, could say I don't have an opinion on any Supreme Court case—not one since the beginning of our Republic. I don't think that is a person who belongs on the appellate bench. If you don't have an opinion, move out of the way and let somebody who has opinions, who understands the law, who understands the Constitution, who knows what the Supreme Court has decided—let that person take the position on the appellate bench.

It is hard to imagine someone sitting before the Judiciary Committee and saying he has no opinion on major Supreme Court cases. I find that, frankly, unbelievable. Nobody believes that. My colleagues on the other side are willing to go forward with this charade and pretend that the man has no opinions when everybody knows he has opinions. He could not be in the position he is in without opinions.

I pulled a quote from Chief Justice Rehnquist which I think really bears on this. Here is what Chief Justice Rehnquist had to say:

Since most justices [you could substitute "judges" as well] come to this bench no earlier than the middle years, it would be unusual if they had not by that time formulated at least some tentative notion that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual but extraordinary if they had not at least given opinions as to constitutional issues in their previous legal careers.
Well, that is not me talking. That is Chief Justice Rehnquist. I think you could certainly conclude from that that this nominee must be, therefore, extremely unusual—so unusual that I don't think he deserves to be confirmed to the bench. Someone who has no opinions clearly does not deserve the kind of responsibility and honor that this appointment suggests.

Mr. DURBIN. Will the Senator yield for a question?

Mrs. CLINTON. Yes.

Mr. DURBIN. Is the Senator familiar with the statement made by the chairman of the Senate Judiciary Committee, Senator
Hatch, before the Federalist Society when he said:

Many of President Clinton's nominees tend to have limited paper trails. Determining which of the President's nominees will become activist is complicated and will require the Senate to be more diligent and extensive in its questions of a nominee's jurisprudential views.

Mrs. CLINTON. Mr. President, I have heard about that, I respond to my friend from Illinois. There is an old colloquial saying: What is good for the goose is good for the gander. It seems to me, if that is the standard the current chairman of the committee adopted in previous years, then for the sake of consistency that ought to be the standard today. But, of course, that is not what this is all about, as my good friend from Illinois knows.

What was an appropriate standard in the previous administration, when I believe the President nominated mainstream people willing to answer questions, willing to present opinions, is no longer applicable now that there is a different President. I think that is a very dangerous precedent, and I do hope that Americans understand this: That the Constitution does not change from administration to administration.

The advise and consent role stays there for the Senate to exercise. If the Senate willingly abdicates this role and decides, I have a President of my own party in the White House now, so I better not ask any questions because I may not like the answers, that is, I believe, a direct repudiation of our constitutional obligations.

I know my good friend from Illinois asked a number of questions of Mr. Estrada seeking some enlightenment, some information on the basis of which the Senator from Illinois could exercise his advise and consent role. The best I can determine, it is very hard to see that the Senator got any answers.

I know in previous years, with many of the same people on the committee, very specific, explicit questions were asked of nominees. I know that many of the nominees who were nominated by President Clinton were asked very detailed questions about their views of Supreme Court and circuit court cases, and to the best of their ability, those who received hearings which, of course, was not everyone who was nominated by the President, but those of President Clinton's appointments who received hearings felt duty bound to answer those questions, and they did so. They were asked questions such as: Please define judicial activism. Do you agree with the Supreme Court's decision in a specific case, such as United States v. Morrison? If you were a Supreme Court Justice, under what circumstances would you vote to overrule precedent in the Court? And on and on—very specific questions about the Constitution, about our Nation's laws, about Supreme Court decisions.

The nominees from President Clinton believed that was their obligation, and that is what they were instructed to believe from the other end of Pennsylvania Avenue.

Unfortunately, many of them were not even given hearings and many who were given hearings were not given votes, and even some who were given votes were never brought to the floor. That is then. What I am worried about is now and how we are going to discharge our constitutional responsibilities.

If one looks at the long list of people who have appeared before this committee in the past, it has always been the practice to seek information that committee members thought would be relevant to exercising their constitutional duties, to make sure this person at least had an opinion about the Supreme Court decisions, to make sure this person was not just someone sitting there to fill a chair, but could actually discharge the duties that were about to be considered for him.

What bothers me deeply is what I see: a developing of a difference in standards. We are a country that has lasted so long because, among other reasons, we believe in the rule of law. It is not people but laws. That is why we invest so much in our Constitution and setting up courts and ensuring people who serve on those courts for lifetime positions are of the right stuff—not that they are conservative or liberal but that they are people who will not be swayed by political or partisan considerations, but will do the best with their God-given ability the job with which they are entrusted, which is to continue the rule of law and to serve justice.

Therefore, it is troubling that when we had one President of one party, the same people in this body wanted to ask everything they could ask. They wanted to know what meetings you went to that had nothing to do with your law practice. They wanted to know how you stood on referenda as a citizen in States that use referenda to set laws. They wanted to know all this, and the people who were nominated complied. They thought: I do not see the relevance of it, but if this is what is requested, we will comply with it.

Now when we are just focusing on the core issues about the suitability of someone for a lifetime appointment to the second highest court in the land, we cannot even get information that one would expect to get from a first year law student.

Obviously, a political decision has been made by the administration that "don't ask, don't tell" applies to judicial nominees and, therefore, we are in a position where we cannot discharge our constitutional responsibilities.

It sort of surprises me, as well as disappoints me, that the administration is taking this position. I guess we have to expect it because time and again this administration has proving itself to flout the rule of law, to be very concerned with secrecy, unwilling to share information with the elected representatives of the American people, and, therefore, a pattern seems to be developing.

I do not care whether you are a conservative or liberal from New York, Texas, California, Alaska, Hawaii—wherever—it is not good for our country to be adopting a policy that elevates secrecy over openness when it comes to judicial nominations and many other matters.

On many grounds, therefore, I stand here today quite troubled about what is developing with respect specifically to Mr. Estrada, with respect to our Constitution, with respect to the refusal by this administration to provide information legally requested by the Senate to fulfill its obligations.

I do not understand why we are in this position. I really do not. I have gone back and read the quotes from the distinguished chairman of the Judiciary Committee, someone I consider a very thoughtful leader on legal issues, and yet I do not follow the logic of having one standard for one administration's nominees and another standard for this administration, and the willingness of the Senate to cede our constitutional responsibilities. That strikes me as going right to the heart of what the Senate is and should be.

Before I arrived in the Senate, I knew it from a distance, as an admirer, a law student, a lawyer, and a law professor in my previous life. I understood the critical role the Senate played, but I have to confess until I actually came, sat in one of these chairs, looked around this august Chamber, and listened to my mentor and leader, Senator Byrd, describe to us how we happen to be here—not by some accident or bolt of lightning, but because of the genius of our Founders building on the ideas of those who came before, and that every generation of Americans has been obligated to continue this extraordinary experiment in constitutional democracy. We did not get it 100 percent right at the beginning. We had a lot of work to do. And the courts played a major role in saying, wait a minute, America, you say all these nice words. You act like these are your values, all men are created equal. What about black men? What about Native Americans? What about women? Do you not think we ought to kind of make reality coincide with rhetoric and really live up to this Constitution?

So for more than 200 years, that is what we have been doing. It has been a partnership: The executive branch, the legislative branch, the judicial branch. Decade after decade, we have taken stock of ourselves, determining what our real bedrock values are as a nation, and making it absolutely clear we would continue to try to perfect our Union, to live up to those extraordinarily high ideals that no nation in the history of the world had even put down on paper, let alone tried to fulfill.

Part of what we are facing today is an agenda by some to really change the direction of our country. Maybe it is a decision the people of the United States would support if they ever got to vote on it. Maybe it is a decision the people in this Chamber would support if we ever voted on it. But that is not how it is occurring. It really is by secrecy and stealth. It is by nominees to our second highest court who will not tell us what they believe on the most important issues facing us as a nation. It is a deliberate attempt to turn the clock back.

I read the documents that have come from organizations that work hand in hand with the administration about vetting and nominating nominees. I know they refer to the Constitution in exile. By that, I guess they mean the Constitution that expanded the civil rights, human rights, and opportunities of people in cases such as Brown v. Board of Education. That is really sad, that their view of America is so narrow. They want to close doors, take up ladders of opportunity, turn the clock back. I think that is very sad. Certainly they are entitled to their opinion, but their opinion should be explicit. If that is the agenda, then let us have a democratic argument about it. Let's have a vote about it. Let's know what we are voting on, so when decisions get reversed, rights get taken away, people know it was not just foisted on them by secrecy and stealth. It happened because of a debate, which is the heart of democracy, where people stood on both sides of this Chamber and said I do think we have gone too far and others could say, no, we have not gone far enough and where is the middle and how do we come to some resolution.

Why it is so important we focus on Mr. Estrada is because he is a stealth nominee, because he will not answer questions, and because of what we are attempting to determine as to our constitutional responsibilities.

I have reviewed the transcripts of Mr. Estrada's hearings in front of the committee. In a moment, I will relay several of the more concerning areas where we lack information. I want to highlight what two of my colleagues on the Judiciary Committee have said about both the written information, which is very limited, and the oral response to questions from Mr. Estrada. Senator Kohl from Wisconsin has said, and I quote, I personally have voted for 99 percent of the nominees that have come before this committee. In all of those cases, I felt that I knew what we were getting when we voted. There was some record of some writings that gave me an idea about how the nominee would perform as a judge. We do not have much of a public record or written record.

Addressing Mr. Estrada, Senator Kohl went on, you have opinions, of course, on many issues, I am sure, but we do not hardly know what any of them might be, and some of us might have a tough time supporting your nomination when we know so little.

Upon the eve of her vote on Estrada's nomination before the committee, Senator Feinstein said: Over the last few days, I have been reviewing background materials about Miguel Estrada, talking to those who have concerns about him, and I have reread the transcript of Mr. Estrada's hearing. I must say that throughout this process, I have been struck by the truly unique lack of information we have about this nominee, and the lack of answers he has given to the many questions raised by members of this committee.

Let me take a minute or two to highlight some of the important issues that come before the DC Circuit and explain more fully why Mr. Estrada's answers are just not satisfactory. I do not expect to agree with the vast majority of the judges this administration sets forth. I have a different idea about the Constitution, about the philosophy that should govern the rule of law. I am fully prepared to say that. I have already voted for about 100 people I probably do not agree with on a lot of things, but they played by the rules. They respected the Constitution. They answered the Senators' questions, not my questions. I am not on the committee, but I trusted my Republican and Democratic colleagues who were on the committee would ask good questions, as they always do, get answers, and then they would make a judgment.

We have confirmed something like 100 judges in the last 2 years. I trusted the Judiciary Committee, which is the first line of defense on advise and consent, to do the hard work. I would then assess that and make my decision. I cannot do that in this case. I wish I could. I might still vote against the nominee because I might not agree with what he said in his opinions, but at least the process would be respected, the advice and consent clause of the Constitution would be honored.

That is not the case. If we look at the individual areas of concern, I think we begin to get an idea why Mr. Estrada does not want to answer questions and why the administration does not want him to answer questions, because even my colleagues on the other side of the aisle would have some really hard questions if the nominee were permitted to answer questions.

Let's start with the environment. The fact is the DC Circuit hears almost all of the cases challenging environmental rules and regulations issued by the Environmental Protection Agency. These are extremely significant decisions. The court decides issues of national importance. It decides issues of great local and regional importance. We may disagree about the best way to protect the environment, but if we are going to go down a road where we pack the DC Circuit with judges who do not have the idea that protecting the environment is a Federal responsibility, we should know that. We should know what we are getting. We are not buying blindly. We should know what we can expect. Maybe then the Congress, if it so chose, could rewrite laws or be clear about congressional intent, but in the absence of knowledge we do not know anything.

The court, in a 1999 decision, American Trucking Association v. EPA, demonstrated not only its deep division but its potential for circumventing the President and congressional intent. In that case, the DC Circuit decided not to review a ruling that struck down Clean Air Act protections against soot and smog. In fact, in the dissent, one of the judges said the court's ruling ignored the last half century of Supreme Court jurisprudence. When the case got to the Supreme Court, in a decision written by Justice Scalia, the DC Circuit was reversed. This was not a Republican or Democrat or liberal or conservative decision. This was a decision based on the precedence, the jurisprudence, the law.

Many of the cases that the circuit court of appeals decides in DC do not go to the Supreme Court. Therefore, we have to be conscious of what a nominee's position is on environmental issues.

Across the board, environmental groups have opposed Mr. Estrada's nomination because he has consistently evaded questions on how he might consider cases of vital environmental interest.

With respect to labor decisions and the National Labor Relations Board, the DC Circuit hears many of those labor and worker-related cases. The court has decided more than 1,000 labor cases over the years. The National Labor Relations Board administers the National Labor Relations Act, which is the primary law that governs relationships between employers and employees. Of course, that is at the root of our economy. We want people to be productive and work, but we also want them not to be taken advantage of and mistreated. There is a balance of power, to go back to my favorite concept, embedded in the Constitution. The Congress has worked it out over the last 50 years where workers have some rights, employers have some rights, and there is a system for adjudicating disagreements and grievances. Time and time again, the Circuit Court of the District of Columbia has ruled on these decisions and has consistently said that if a decision from the National Labor Relations Board is supported by substantial evidence, the courts are supposed to uphold it.

Unfortunately, many people are concerned and have spoken out against Mr. Estrada's nomination because they have no way of knowing what, if any, opinions he has on these critical issues. It is a fair set of questions to ask and to receive answers about.

When it comes to energy, certainly one of the most important issues throughout our country, the DC Circuit has exclusive jurisdiction over cases coming from the Federal Energy Regulatory Commission. That is called FERK. These cases are often up in the court of appeals, trying to figure out what is a just and reasonable rate of return for oil, gas, and electric companies. Therefore, the cases coming out of the DC Circuit affect everybody who has any power that is generated by oil, gas, and electricity around our country.

In many of these cases, not only individuals but States have big stakes in their outcome. When we think about ruling on these cases, it is only fair, since it may affect my energy bill, that I have some understanding from the Judiciary Committee whether this nominee has opinions, past track records, clients, anything that might affect his rulings.

Similarly, the DC Court has exclusive jurisdiction over cases arising under the Federal Communications Commission. Again, that affects every one of us. Do you have a television? Do you have cable? Do you enjoy the mass media, the broadcast media? Do you have a telephone? Do you know what rates you pay ultimately for long distance? Do you have a wireless phone? All of these issues fall under the FCC. Without any written record, again, we cannot get answers to questions about matters that will affect every American.

Some of this may sound technical, and I understand that, but it is easily understood that the stark reality is the DC Circuit controls so many of the rules under which we live every single day in our homes and workplaces. This is not some abstract speculative concern about what might happen to somebody else. What happens in this DC Circuit affects each of us. That is why I am so concerned that in the absence of information, in the absence of the Judiciary Committee believing they have been able to make an informed decision and have not just done what they were told to do by the administration, we may be setting up the people we represent for all kinds of changes in their lives that were never aired publicly, were never given due consideration, but which will affect every one of us.

That is why this nomination cannot be handled lightly, why it cannot be rammed through, why the Constitution and the rule of law, the role of the Senate to advise and consent, need to be respected.

When we think about where we are right now in the 21st century, we know we have lots of big challenges ahead. We have national security challenges, homeland security challenges, economic challenges, challenges concerning health care, education, the environment, and energy. There is a lot that lies in front of us. We need to bring to our considerations the same thoughtful, careful analysis that our predecessors in this body brought to theirs.

I am very worried that we are making decisions at home and abroad that will affect our country and our children for generations to come. Certainly, judicial decisions fall into that category. The DC Circuit has served as kind of a bullpen for the Supreme Court. More judges have been appointed to the Supreme Court from the DC Circuit than from any court in the land. That is often where the President looks to find somebody qualified who understands the full range of constitutional and legal issues that will very well end up in the Supreme Court. In fact, the DC Circuit has given us three of the nine current Supreme Court Justices—Justices Ginsburg, Scalia, and Thomas.

Therefore, I have to be doubly careful about my vote. I don't know what will happen on the Supreme Court. I wish every one of the Justices good health and a lot of energy for decades to come, but none of us knows where we will be tomorrow. We have no way of predicting our fate. It could turn out that there might be an opening on the Supreme Court and it might very well be someone from the DC Circuit who could be chosen. So far as I know everyone else serving actually answered questions, offered opinions, went through the process, gave the Senate the opportunity to exercise our constitutional duty to advise and consent.

If Mr. Estrada joins the court and all of a sudden an opening were to occur and the administration said to themselves, this was so good, we got somebody through that nobody could even ask a question of or get a straight answer from, let's just nominate him for the Supreme Court and do the same thing, run the same drill, then I would hope my colleagues on both sides of this aisle would say, no, no, I cannot let that happen to my Constitution. I may love my President but I love my Constitution. Presidents come and go but the Constitution remains.

We, at our peril, undermine it, disrespect it, disregard it, and this body, at its peril, gives up its constitutional prerogative rendering it a debating society, at best, and irrelevancy, at worst. Here we are, debating not just a nomination but debating the Constitution, debating the rule of law, debating whether this Senate and its Judiciary Committee will be able to fulfill its constitutional responsibility. These are high stakes. Talking about many of the nominees to the district court of appeals, I just can't help but use a little history. I think those who do not know history are condemned to repeat it. I know there is always a lot of revisionist history that goes on to suit political, partisan, ideological—even commercial ends. But these are the facts.

The former President nominated highly qualified people for the DC Circuit. Unfortunately, of those three nominees, two of them were given a hearing, one was not; two were not given a committee vote, one was. It took from 15 to 18 months for no action, no vote, and one out of three was confirmed. We didn't even get the courtesy of a vote, even though tons of information was turned over on the first two of these nominees.

From my perspective, that is water under the bridge. But I think it is telling because the Constitution did not change. As far as I know, the same Constitution we had in 1990 is the Constitution we have in 2003. The advice and consent clause didn't change, as far as I know. The advice and consent responsibility was the same throughout the 1990s as it is now in the 21st century. Some nominees went to extreme lengths to provide every scrap of paper, every opinion requested, in order to demonstrate their good faith and their respect for the Senate, their respect for the Constitution.

In a previous time, I know my good friends on the other side of the aisle, were he to have sat there and said, I have no opinion about anything, would have said: You are not getting my vote. You should not even get a hearing. You don't deserve one. Because somebody who comes before this committee and says he has no opinion about anything is clearly gaming the committee. Everybody knows that. I do not think the committee would have stood for it in the 1990s.

The Democrats this time voted unanimously against Mr. Estrada on the basis of his failure to answer questions and failure to appropriately and respectfully provide written material that was provided in previous instances with respect to Justice Rehnquist and Justice Bork. That material was not provided with respect to Mr. Estrada. So I think we really obviously have a double standard. It is an ideologically driven double standard.

I think that is a mistake. I think it is always a mistake when we try to push through something that in the long run undermines the balance of power, the constitutional framework, the role and responsibility of the Senate.

I have received countless letters, e-mails, and telephone calls about this nomination. Many of the people have expressed their concerns about the process in which we are engaged. A letter from a Utica, NY, constituent, Anna Maria Convertino, sums up the objections my office has been receiving. She gave me permission to quote from her letter. Here is what Anna Maria from Utica, NY, has to say:

I am writing to urge you to filibuster the nomination of Miguel Estrada for the District of Columbia Court of Appeals by voting no on cloture. Estrada has refused to answer questions about his commitment to abortion rights or basic civil rights. The burden should be on the nominee for a lifetime appointment to show that he deserves to serve as a Federal judge. Estrada's lack of an established record and unwillingness to answer questions means that he has failed to make this showing.

I certainly appreciate Anna Maria contacting me and summing up so well the problems with this nomination.
Many people who have followed this closely, many major Latino and Hispanic organizations across our country, and in New York, share those doubts. The Congressional Hispanic Caucus, which has members from New York City to LA, from Texas to Chicago, interviewed Mr. Estrada. After that interview and reviewing his credentials, they concluded that he failed to merit their endorsement. Today, the caucus again opposes his nomination along with the Mexican-American Legal Defense and Education Fund, the Puerto Rican Legal Defense Fund led by the able work of my constituent, Angelo Falcon; the National Association of Latino Elected and Appointed Officials, the California La Raza lawyers, the Southwest Voter Registration Project, the Illinois Puerto Rican Bar Association, and on and on and on.

Mr. REID. Mr. President, will the Senator from New York yield for a question?

Mrs. CLINTON. I certainly will.

Mr. REID. The Senator was on the floor this morning when there was a colloquy between this Senator and the senior Senator from Illinois. There was a question that arose as to the number of people in the Hispanic Caucus in the House. I have since checked that and determined there are 20 in the Hispanic Caucus in the House. The only Hispanic Members of the House of Representatives, I am told, who are not members of that Hispanic Caucus, are three in number. So it is 20 who are members of the Hispanic Caucus and 3 who are not.

Mrs. CLINTON. I appreciate the clarification from my good friend from Nevada. Certainly, having worked with the Congressional Hispanic Caucus over many years, I know they are a national organization, representing people throughout our country. They did not reach this conclusion lightly. They interviewed Mr. Estrada. They asked questions. They sought information. They talked to other people who knew him, had worked with him. They really tried to do due diligence. They tried to do the job that the Judiciary Committee should do, trying to get at what is it about this nominee that we can either oppose or support. At the end of their inquiry and investigation, they concluded that they could not support him.
I am sure that was a difficult decision, from talking with my friends in the Hispanic Caucus. It was a very tough decision because on the face of it, this looked like a no-brainer: Line up behind Mr. Estrada, vote for him, put him on the DC Circuit, and everybody can go home and say: Look what I did; I voted for this nominee.

But that is an abdication of responsibility. That is truly the kind of action that undermines faith in our democratic process—to abdicate your intelligent, careful analysis of someone just to be able to check a box. I thought it was very courageous of the Hispanic Caucus to say: We have looked into this, we have investigated it, and we cannot support him.

Therefore, please—please—at least try to find out what this man stands for, what he would do, what he believes in, because we have not been able to do so.

Part of why many of us are coming to the floor is that this is a troubling nomination on many grounds. I know there are those, such as my friends in the Hispanic Caucus, who are troubled by the nominee and what he stands for or doesn't stand for, what he would do or not do, and the failure to get information.

I know my colleagues on the Democratic side in the Judiciary Committee were extremely troubled—including people, as I have just quoted, who historically vote with a President on a nominee—and were very pained about having to say, I can't do it this time.

I know, too, that many of us are concerned because, if the Judiciary Committee cannot do the work, we can't do the work. We can't call Mr. Estrada into our office and put him under oath and ask him the questions that he wouldn't answer when my colleagues from Illinois and from New York and from Wisconsin and California and everywhere else could not get answers out of him.

But fundamentally, even beyond the procedures—the failure to answer, the kind of stealth campaign that the administration is running, the don't ask, don't tell—the nomination process is the Constitution. I think there are certain duties, whether you are a constitutionalist, an originalist, a Federalist—whatever you are, whatever the label you want to pin on yourself might be—there are certain duties that cannot be delegated. There are responsibilities embedded in the Constitution that were given to us by our Founders in Philadelphia, and among the most important is the importance of the role of the Senate to advise and consent.

Mr. HATCH. Mr. President, will the Senator yield for a question?

Mrs. CLINTON. Certainly.

Mr. HATCH. Is the Senator aware that Miguel Estrada has argued 15 cases before the Supreme Court?

Mrs. CLINTON. Yes, on behalf of clients—not on behalf of himself.

Mr. HATCH. He won 10 of them. Right?

Mrs. CLINTON. I am aware of that.

Mr. HATCH. Has the Senator from New York read any of those briefs that he filed in that court?

Mrs. CLINTON. I have reviewed a number of them. I certainly am no expert on the cases, but I concede the point to the chairman that Mr. Estrada has argued cases on behalf of clients whose positions he was advocating and has done so extremely well.

Mr. HATCH. And he has done it on behalf of clients as an attorney should.

Mrs. CLINTON. Indeed. But he is not representing his clients before the Judiciary Committee. He stands there as Miguel Estrada for a potential lifetime appointment to the second highest court in the land. Therefore, he can no longer speak for clients. He must speak for himself.

Mr. HATCH. He did.

Mrs. CLINTON. That is not the conclusion reached by the Democratic Senators, nor by the Hispanic Caucus, nor by many who have followed this nomination closely—to ask a man of his record before the Supreme Court whether he had an opinion about any Supreme Court decision and for him to say, no, he did not, is absolutely unbelievable.

Mr. HATCH. Is the Senator aware that the Hispanic Caucus in the House is made up of all Democrats because they would not meet the Republicans who were left out of the caucus?

Mrs. CLINTON. I am very well aware of the makeup of the Hispanic Caucus. I have worked with members of the Hispanic Caucus for many years.

I think it is also fair to look at the geographical diversity and the experience base of these people who represent Americans from New York to L.A. and from Texas to Chicago who went to the trouble to interview the nominee and concluded by their own efforts that he was not going to be acceptable in part because they couldn't get adequate information on which to base a good decision.

Mr. HATCH. Is the Senator aware that the Democratic Hispanic Caucus in the House was actually almost equally divided as to whether or not to support Miguel Estrada, but the majority made the—

Mrs. CLINTON. I think what I judge is by what people say at the end of a conclusive discussion and what they determine based on their own consideration. Much of my concern is based on the Constitution and the role of this body—not on what people did or didn't do, although I think that is instructive, and I think it is very helpful. It does have sway with me because I don't believe we have developed an adequate record in the Judiciary Committee that would give even those of us who might end up opposing his nomination—I don't know that for a fact—an adequate basis on which to exercise our constitutional responsibility.

Mr. HATCH. Will the Senator yield again for a question?

Mrs. CLINTON. Yes. I will.

Mr. HATCH. I will try not to interrupt the Senator anymore, but the point I was making with the briefs in the Supreme Court—15 of them and more—is that there is a record from which you certainly can determine legal reasoning, as well as an extensive stack of records of the Judiciary Committee hearings. And let me say this. Those hearings were conducted by none other than the Senator's colleague from New York, Senator Schumer, and other Democrat Senators who said the hearings were fairly conducted. Is the Senator aware of all of that?

Mrs. CLINTON. I say to my good friend from Utah, I am aware of all that. But I have to respectfully point out several responses.

A long time ago I used to practice law. I represented a lot of clients of different kinds, all sorts of folks. Their views and their positions were not necessarily mine. I won some and I lost some in the trial court, in the appellate court, and in the administrative hearing room, but I do not believe that any of my clients spoke for me. My advocacy on behalf of clients was not the same as my positions about the law, about constitutional issues, and about many other matters. So the fact that someone has practiced law and that someone has argued cases is a factor to take into account. I certainly believe that is a significant factor. But that is not determinative. That is not in any way decisive when it comes to giving someone the opportunity to have a lifetime position on the second highest court in the land.

Mr. REID. Mr. President, will the Senator from New York yield for a question?

Mrs. CLINTON. Yes, I will.

Mr. REID. I want the Senator to know that I met with the chairman of the Hispanic Caucus and other members of the caucus, plus a number of people on a conference call a few days ago—in the last week or 10 days. Is the Senator aware that on that telephone call I was told that every member of the Hispanic Caucus—all 20 of them, every one of them—opposed the nomination of Miguel Estrada to be a member of the District of Columbia Court of Appeals?

Mrs. CLINTON. The Senator is absolutely correct. In fact, I have a copy of the September 25, 2002, letter written by the Congressional Hispanic Caucus to the then-chairman of the Judiciary Committee announcing the decision to oppose the nomination.

Mr. HATCH. Will the Senator yield on another point?

Mrs. CLINTON. Yes.

Mr. HATCH. Is the Senator aware that every Republican Hispanic member in the House is totally in support of Mr.

Mrs. CLINTON. I am well aware that there are three Republican Hispanic Members in the House who are not members of the Hispanic Caucus. I understand that.

Mr. HATCH. And that there are four of them.

Mrs. CLINTON. I would be more than happy to have them send a letter explaining the reasons as to why they support him other than the fact they have been told to do so by the Republican leadership of the House and the administration.

What I have from the Congressional Hispanic Caucus is a very well reasoned letter setting out the decision as to why all 20 members of the Hispanic Caucus would not support this nomination. I think it is instructive.

It is instructive to read the thinking of the Hispanic Caucus. Of course, much of it rests on the fact that there is such a limited record. It is very hard to determine what it is this gentleman would do. I think the Hispanic Caucus raises some very telling points which have not been adequately addressed in the process up until now.

For reasons of our Constitution, of our rule of law, of our nomination process, of our Senate and its prerogative, as well as the decision apparently made by the administration to adopt a don't ask, don't tell policy when it comes to important lifetime appointments on the Federal judiciary, I certainly will have to oppose this nomination.

I yield the floor.

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