Congressional Record: February 6, 2003 (Senate)
Page S2059-S2060

                           EXECUTIVE SESSION



  The PRESIDING OFFICER. The Democratic whip.
  Mr. REID. I apologize to the Chair. I know the Chair has things to 
do. We have been in the same position. We know that it is not 
convenient sometimes to preside, but we were kind of dared to come out 
here today, even though there are a lot of things going on. We had a 
number of people who went to the memorial. Senators from the other side 
said: I am amazed there are no Democrats here to debate Estrada. We 
recognize there is going to be other time to debate, but we do not want 
the record to appear that we are not interested. That is the reason I 
came down here, to offer my opinion.
  Migrada Estrada has literally had no paper trail. Despite what some 
of my colleagues have said on the other side of the aisle, it is 
indisputable that Solicitor General memoranda have been turned over in 
the past. For example, the Department of Justice turned over Solicitor 
General memoranda for Bork, Rehnquist, and Easterbrook. On executive 
branch appointments, the Department of Justice turned over memoranda 
for Benjamin Civiletti.
  While my colleagues may note that former Solicitors General have 
written a letter opposing the release of these memos, they cite no 
legal authority for keeping these memos secret. Basically what they say 
is it would impede these people from writing their opinions. It doesn't 
happen very often that these people are asked to serve on the second 
highest court of the land. It is not often they are asked to serve on 
the U.S. Supreme Court. But in cases in the past when that has 
occurred, with Rehnquist, Bork and, of course, another important 
appointment, Easterbrook, they were made available. And they should be 
made available here.
  There is no attorney-client privilege at work here. The courts have 
determined that applying that privilege to Congress would impede our 
work. Both the House and the Senate have refused to recognize the 
privilege in their rules. Former Solicitors argue that the policy 
considerations of ensuring candid advice outweighs the Senate's 
interest in examining this nominee. I don't think that is valid.
  As I mentioned, the precedent supports release of these memos to the 
Senate. Further, the United States' own Department of Justice 
guidelines from 2000 state:

       Our experience indicates that the Justice Department can 
     develop accommodations with congressional committees that 
     satisfy their needs for the information that may be obtained 
     in deliberative material while at the same time protecting 
     the Department's interest in avoiding a chill in the candor 
     of future deliberations.

  It is my understanding the Department of Justice has made no attempt 
to reach such an accommodation with the Judiciary Committee. The 
stonewalling on the Estrada nomination is part of a larger systematic 
effort by this administration to disable the Senate, to govern in 
secret, to advance the interests of big business over the public 
  I joined an amicus curiae brief in a matter where Vice President 
Cheney had all these meetings with big oil companies. It was determined 
that there should be some divulging of whom he met with, when he met 
with them, and what they talked about. Litigation had to be filed on 
that, and I joined in that litigation, filing a friend of the court 
brief. It is not right that there be stonewalling. Here is another 
example of what has happened in this administration.

  My colleague and a dear friend, the chairman of the Judiciary 
Committee, Senator Hatch, has called the Democratic calls for more 
information about Estrada ``silly.'' Well, we have a role as Members of 
the Senate to advise and give consent to nominations forwarded to us by 
the White House. I don't think what we are asking is silly.
  My friend may not agree with our position, but it is not a silly 
position. Here is a person about whom the Hispanic caucus of the 
Congress unanimously said: We don't want him.
  Here is a person about whom I put in the Record over 50 organizations 
yesterday saying: We don't want him.
  There are lots of different reasons organizations give based on his 
qualifications, his temperament. We have one of his former employers 
who said his temperament, demeanor is not appropriate to serve on a 
circuit court. In fact, he said he was an ideologue.

[[Page S2060]]

  That is not silly. People may disagree with our position, but it is 
not a silly position. The Constitution's consent requirement is not 
just a rubberstamp requirement, as my colleague himself once observed. 
When a Democratic President sat in the White House, my Republican 
colleagues called for voluminous document presentations from his 
judicial nominees, and they got them.
  Judge Paez, I talked to his mother, trying to get him confirmed, and 
we finally did. Senator Hatch knows this. I had his mother talk to 
Senator Hatch. He was held up for 4 years. He was asked to provide 
documentation of every instance during his tenure as a lower court 
judge where he reduced a sentence downward from Federal sentencing 
guidelines. I had no problem with their asking for them. Why did he do 
it? Was his judicial temperament, his activism, as it is called by my 
friend from Utah, so much that he couldn't vote to confirm? That is a 
right that he has.

  Judge Marcia Berzon was required to provide the minutes from every 
single California ACLU meeting that occurred while she was a member, 
regardless of whether she had even attended the meeting.
  At that time, Chairman Hatch stated:

       [T]he Senate can and should do what it can to ascertain the 
     jurisprudential views a nominee will bring to the bench in 
     order to prevent the confirmation of those who are likely to 
     be judicial activists.

  That is not a ``silly'' thing he is doing. He has a right to do that. 
Senator Hatch continued:

       Determining which of President Clinton's nominees will 
     become activists is complicated and it will require the 
     Senate to be more diligent and extensive in its questioning 
     of nominees' jurisprudential views.

  He had a right to do that. I think the Senate should be similarly 
diligent and probing in its review of Mr. Estrada's record. Basically, 
the Judiciary Committee asked him roughly 80 questions and he didn't 
give any answers. He gave answers such as ``I have not read the 
briefs;'' ``I wasn't present during arguments;'' ``I have to 
independently research the issue.'' He was asked to name three cases 
from the last 40 years--Supreme Court cases--of which he was critical. 
He didn't have any.
  Even Chief Justice Rehnquist, who presided in the Senate during the 
impeachment trial--and the Presiding Officer was one of the 
prosecutors--and, I thought, handled that impeachment proceeding with 
great solemnity--he was diligent and fair. I may not agree with all of 
his legal opinions, but what a nice man. I was chairman of the 
Democratic Policy Committee, and I called the Chief Justice and said: 
Come visit with us at election time; would you do that? He did that. He 
answered questions, was real funny, and he had a great sense of humor. 
So Chief Justice Rehnquist, a person I have great respect for, said:

       Since most justices come to this bench no earlier than 
     their middle years, it would be unusual if they had not by 
     that time formulated at least some tentative notions that 
     would influence them in their interpretation of the sweeping 
     clauses of the Constitution and their interaction with one 

  This nominee doesn't fall under that. He also commented:

       It would not merely be unusual, but extraordinary if they 
     had not at least given opinions as to Constitutional issues 
     in their previous legal careers.

  They are asking that the man be on the second highest court in this 
land and he doesn't have any opinion about other opinions written by 
judges. I think that really says it all--why there are questions being 
  I am going to bring in here--I was hoping to do it today. Everybody 
brings in visual aids to the Senate, and there have been efforts to cut 
the size of them, or to cut them out. Anyway, that has not been done. 
Let's assume we had a chart back here, a big white piece of cardboard, 
or posterboard, and we had here the judicial experience of Mr. Estrada. 
It would be blank. There would not be anything on it. We would bring 
out another chart and on that it would have Miguel Estrada and it would 
have there the questions he answered for the Judiciary Committee. It 
would be blank. There would be nothing on it.
  Does it seem ``silly'' that we are asking questions about this man? I 
don't think so. So I would say that we have a right and an obligation 
to move forward the way we are.
  The administration's secrecy is deeply disturbing in all these areas. 
It is more so in the case of Miguel Estrada. I have talked about Vice 
President Cheney not giving us information about the oil companies, and 
this nomination is also very troubling to me. If I could file another 
court brief in this instance, I would. It is not available. This is a 
different type of proceeding.

  Senators have a constitutional duty to evaluate this nominee. This 
nominee has stayed silent, refusing the American people a window into 
his views, judicial philosophy, and his manner of thinking. The 
administration has similarly refused to turn over documents that would 
illustrate those things to the Senate.
  Should we approve this nomination, the Senate would be setting a 
dangerous precedent that would greatly narrow the scope of the 
important power vested in us by our Founding Fathers.
  It would serve neither the Senate, the people of Nevada, nor the rest 
of the American people to confer such a rubber stamp on this or any 
administration, Republican or Democrat.
  The Founders carefully balanced the powers of each branch of 
government, and the Senate's role in approving a President's nominee is 
a critical part of that balance, this separation of powers.
  I submit that the examples I have provided show that this 
administration has forgotten, or ignored, the importance of that 
  There is no more important a time to remind this administration of 
the importance of that balance than in the case of a person who is 
nominated for a lifetime judicial appointment to the second highest 
court in our land.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.