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Mr. Reid: Madam President, on the floor today is the former chairman of the Judiciary Committee, now the ranking member of the Judiciary Committee, the distinguished senior Senator from Vermont. The Senator has heard me on a number of occasions boast about the work he has done as the leader of the Democrats in the Judiciary Committee and the leader of the Senate in the Judiciary Committee. There has been a lot of talk about the Democrats holding up judicial nominees during the time we were in power in the Senate.

It is my understanding--I ask the Senator to respond to this question--that while the distinguished Senator from Vermont was chairman of the Judiciary Committee for a very short period of time--17 months--he broke all records of the body in approving some 100 Federal judges for President Bush.

Is that a fair statement?

Mr. Leahy: Madam President, it is a fair statement. In fact, I think in mid-July we finally got an agreement to organize the committee. Ten minutes after we got that agreement, I noticed the first hearing and set the first hearing on President Bush's judges.

The Republicans had been in charge up to that time--up until July-- and there were a number of nominees of President Bush, but they had not held any hearings whatsoever. I began the process of holding them within 10 minutes of the time I became chairman. Then, during the next 17 months, we held hearings on 103, we voted through 100, voted down 2, and had 1 remaining.

There is no 17-month period under Republican control with President Clinton when that was done.

Mr. Reid: Will the Senator also respond to this? It is also my recollection that during that 17-month period the Senator from Vermont's office received a letter which contained anthrax, Senator Daschle's office received a letter which contained anthrax, and 9/11 occurred. In spite of all that, and the Senate being, in effect, locked down and the country being locked down, still the Judiciary Committee, led by the distinguished Senator from Vermont, approved a record number of judges, in spite of those items I mentioned--two anthrax attacks, one on the Senator who is now before me, one on the distinguished majority leader, the Democratic leader, and 9/11.

Is that true?

Mr. Leahy: The Senator is absolutely correct. Obviously, we all remember how much disruption there was. The letter to the distinguished Senator from South Dakota ended up closing the Hart Building and temporarily the Dirksen Building. The letter that was sent to me was so toxic that two people who touched it died. Died. We had not canceled a single hearing. In fact, on one day when the Senate was being evacuated because we had scheduled a time to vote out some of President Bush's nominees, I literally grabbed Senators and held them here long enough to vote out some of President Bush's nominees.

I say this knowing that when the Republicans were in charge and President Clinton was in office, we sometimes went 8 or 9 months without even having a vote on nominees. We were doing it several times a month.

I appreciate the Senator asking those questions.

Mr. Reid: Will the Senator also answer this question? When the Hart Building was locked down, we were out of space around the Capitol and the Senator had every excuse as chairman of that committee not to hold hearings. I remember the Senator holding hearings down in the basement of the Capitol. There was not room for people. People were jammed into that room. But the Senator used no excuse to avoid going ahead with President Bush's nominations to the judiciary.

Is that true?

Mr. Leahy: The distinguished Senator is absolutely correct. I might say that I commend especially the staff who in some instances were working out of their cars, working out of my hideaway or in the hallways, just because even our committee rooms were closed. I had people working out of the family room in my house. We did all of this so we could continue what turned out to be a recordbreaking number of hearings and votes on President Bush's nominees.

Mr. Reid: Madam President, I want to make a brief statement to the distinguished senior Senator from West Virginia.

I ask unanimous consent that he be recognized following my very brief statement.

The Presiding officer: Is there objection? Without objection, it is so ordered.

Mr. Reid: Madam President, I want the Record to reflect that the Senator from Vermont has been an exemplary chairman of one of the most important committees during one of the most difficult times in the history of this country. And for anyone to ever--I have been on this floor defending the Senator, as I will continue to do my entire career. If anyone ever suggests the Senator from Vermont didn't do stalwart and exemplary work, I will take them to task for it. In the most difficult of circumstances, in the most partisan times in the history of this country, the Senator from Vermont was not partisan. He moved the committee along in a nonpartisan, bipartisan basis. As I recall, 100 judges were approved and only two judges were turned down by the committee.

I think it is remarkable what has been done. I appreciate the Senator responding to those brief questions.

I want to just say briefly there has been some suggestion we have been trying to hold up things here. The only one holding up things is the majority. They can move off this nomination five seconds from now. They could give us the information we want or try to invoke cloture. The reason we are not off this nomination is they have no plan and nothing to do.

I would like to read into the Record what Bob Novak--we all know Bob Novak. He is one of the most conservative--it is his birthday today. I heard it on Public Radio. I wish Bob Novak a happy birthday. Bob Novak hasn't been very prone to saying good things about Democrats. But here is what he said.

Novak: Well, the Republicans figured that they would be home at their recess last week and find out what the people wanted. Apparently, the people weren't interested in Estrada, because the Republicans have no idea what to do in the Senate. They had a leadership meeting yesterday afternoon, couldn't figure anything out, had a luncheon of all the Republican senators, didn't figure it out. All that's decided is, they're not going to ask for a cloture vote to force an end to the filibuster, because they'd lost that. But they have no strategy for around-the-clock sessions. They don't know what to do. The Democrats are winning.

That is Bob Novak.

I want this Record spread with the fact that the Democrats if we wanted to hold things up, we could be objecting to committees meeting. We could be doing a lot of things just to slow things down. We want to speed things up. We want to get to the business of this country dealing with the economy.

I listened to the radio this morning that they were going to have a debate in the British Parliament about the Iraqi war. The senior Senator from Illinois told me he listened to an hour of that debate this morning. I think it is wonderful that the British people are able to listen to their leaders debate a war. It does not matter what side you are on. Wouldn't it be important to debate the pros and cons of this war?

And I say to my friend--my esteemed friend, somebody I admire greatly--the senior Senator from West Virginia, you have been able to come here and sneak a little bit of time--sneak it in--to talk about the war. It has been hard for the Senator to get floor time to talk about this issue.

I respect and admire both of these Senators on the floor for being such great examples to me. But I want everyone to know that we are not trying to take advantage of anyone. If we were doing that, there would be all kinds of things we could do in a parliamentary sense. We are not doing that. We believe the burden is on the majority to move the legislation of this country, and it is not being moved.

The Presiding officer: The Senator from West Virginia.

Mr. Byrd: Madam President, I thank the distinguished Senator from Nevada for his kind comments and always for the great services he performs for the American people here in this body.

Madam President, is the Senate in executive session?

The Presiding officer: Yes, it is.

Mr. Byrd: I ask unanimous consent to speak as in legislative session.

The Presiding officer: Without objection, it is so ordered.

Mr. Byrd: I thank the Chair.

The Budgetary Costs of a War in Iraq

Mr. Byrd: Madam President, since last August, the administration has worked aggressively to convince the American public that Saddam Hussein is a brutal dictator who directly threatens the United States. The President has been unambiguous, and often dangerously blunt, about his passion to use military force to destroy Saddam Hussein's regime.

The Bush administration has promoted a vision of Saddam's removal from power quickly, easily, and bloodlessly. Indeed, part of the rationale for support for this war is that America's tremendous military superiority over Iraq will confine a military conflict to a relatively painless contest between the United States' awesome military forces and the relatively weak, conventional military machine of Saddam Hussein.

A swift and simple military victory certainly is one possibility, but in our democratic Republic the administration also has a responsibility to inform the American people that much less pleasant scenarios are also possible and even likely. The Congress has a responsibility to explore all possible scenarios with an eye to the eventual costs of this war. We must not just accept the rosy projections so far offered by the administration. Frankly, I have seen little effort by either the administration or the Congress to inform the American taxpayer about the likely costs of this war.

In both dollars and human lives, the administration has been ominously quiet about its internal calculations and estimates. What is even worse is that the Congress has barely bothered to ask about them.

Earlier this month, the President unveiled his budget for the fiscal year 2004. Even assuming the most primitive and loose definition of the term "fiscal responsibility," that budget request should certainly have included some rough estimate cost for a war with Iraq. Even a range of costs would have been somewhat illuminating.

But no cost estimate was included in the budget of the President's. Now let me repeat that. There is no estimate of the cost of the looming war with Iraq in the President's budget--no cost estimate. That is hard to believe, isn't it? But that is the case. The possible war has dominated the airwaves for months, and yet there is no cost estimate in the President's budget. President Bush mentions the looming conflict in nearly every public pronouncement, and yet no cost estimate to fight the war appears in the President's budget--none. Is the administration trying to tell the people of this Nation it is for free?

When the Defense Secretary presented the President's defense budget to the Senate Armed Services Committee, and was asked what the administration projected that a war in Iraq would cost, he would only say that such costs are "not knowable." Let us contemplate that answer: "not knowable." Does the Secretary of Defense mean to say that this great Nation does not yet know what its plans include for a war with Iraq? Is that why the costs are "not knowable"? Does he mean to say that we do not yet know exactly what we are going to try to achieve in Iraq? Is that why the costs are "not knowable"? Or does he simply mean to indicate that he does not want to divulge the potential costs, therefore to us they are "not knowable"?

One must presume that by now the administration would have made several internal forecasts of the military cost of the war using various scenarios, and that the White House Council of Economic Advisors would have prepared for the President a classified study of the projected economic impact of the war. Reportedly, OMB Director Mitch Daniels has been working on war estimates for months, and yet we are told that these costs are "not knowable." None of this information has been made available to the public, nor, I suspect, is it likely to be released in the near future. This Congress--these two Houses; the people's elected Representatives--has a responsibility to demand that information. The people have a right to know. They are going to suffer the costs. Congress must not accept the answer, "not knowable." The American people, I say, deserve to know. They deserve to know the truth.

There was one cost estimate provided by the administration which came from an interview last fall with Larry Lindsey, the President's former economic advisor, who said that a war with Iraq could cost between $100 billion and $200 billion. He went on to opine that that was "nothing."

Yet the White House quickly distanced itself from that comment, and the Director of the Office of Management and Budget rebuked that estimate, saying that Lindsey's estimate was "very, very high."

The OMB Director suggested that the cost of the war would be closer to $60 billion or $70 billion. The Pentagon recently stretched that estimate to $95 billion. I wonder just what we are to make of these conflicting estimates.

How are we to gauge the validity of such widely varying numbers? How are the American people to gauge the validity of such widely varying numbers? Do these figures contemplate other complications? What if casualty estimates grow into the thousands? And they may. What if oil prices skyrocket, sparking inflation and lines at the gas pump and costing the U.S. economy thousands of American jobs? Suppose the Middle East erupts in a tornado of violence, toppling regime after regime in the region.

Even a rudimentary list of the possible contingencies shows that costs may grossly exceed what the administration wants the public to believe.

The Congressional Budget Office reported last September that the incremental cost of just deploying a force to the Persian Gulf--that is, those costs incurred above those budgeted for routine operations-- could be between $9 billion and $13 billion. Prosecuting a war, according to the CBO, could cost between $6 billion and $9 billion per month. And after hostilities ended, the cost just to return U.S. forces to their home bases could range between $5 billion and $7 billion.

Regardless of the swiftness of a military victory--it could be swift, but it might not be--there remains the cost of a postwar occupation of Iraq, which the administration says could last for up to 2 years and could mean another $1 billion to $4 billion, or more, per month during that period. On top of that, the United States might face a humanitarian crisis, including rampant disease and starvation, if Saddam Hussein employs a scorched earth strategy in defending his regime. What about the need for a cleanup of biological and chemical weapons if the Iraqi Republican Guard employs them against U.S. soldiers?

Reconstruction and nation-building costs resulting from installing a democratic government in Iraq have to also be thought about. The American Academy of Arts and Sciences projected that the minimum reconstruction and nation-building cost for Iraq could be as high as $30 billion, and that is under the very best of circumstances. Will the administration propose something similar to the Marshall plan for Iraq? The Academy reported that U.S. investments in Western Europe after World War II under the Marshall plan cost a total of $13.3 billion over a 4-year period. That is the equivalent of $450 billion over 4 years if measured as a percentage of GDP in 2002.

Mr. Sarbanes: Madam President, will the Senator yield for a question?

Mr. Byrd: Madam President, I am glad to yield.

Mr. Sarbanes: Madam President, let me say how much I appreciate the clarion call which the very distinguished Senator from West Virginia has been sounding. It is an extremely important issue--actually the No. 1 challenge facing the country.

Am I correct that the budget submitted by the administration--and I know the very able Senator probably knows more about the appropriations process than any Member of this body--did not contain any money for a potential war in Iraq or for subsequent reconstruction efforts?

Mr. Byrd: The distinguished Senator from Maryland is preeminently correct. There is no estimate of what the war will cost in the President's budget.

Mr. Sarbanes: So the deficits projected in the President's budget, which are now going up toward the $300 billion level--and which have broken us out of the situation we were in only a couple of years ago where we were running surpluses--do not encompass potential costs of this military action in Iraq. In other words, the deficits would be significantly enhanced by whatever the amount of the cost would be; is that correct?

Mr. Byrd: Astoundingly, the President's budget does not present such a cost. The Senator is exactly right.

Mr. Sarbanes: I was listening carefully to the Senator. As I understand it--and the estimates are all over the lot--the administration represents that it could last 4 days, or it could last 4 weeks, or it could last 4 months; and you try to get them to pinpoint it, and they say: Well, who can tell what is going to happen? I gather even the Pentagon--and presumably they want to present the best light-- is estimating a $100 billion cost.

Mr. Byrd: It is $95 billion, right under that.

Mr. Sarbanes: And you have an estimate for the reconstruction that was $30 billion, roughly speaking.

Mr. Byrd: At a minimum, $30 billion.

Mr. Sarbanes: At a minimum. Of course, that was assuming we would not have this kind of devastation out there that might be possible if the weapons of mass destruction were to be utilized.

Mr. Byrd: Yes.

Mr. Sarbanes: Well, these are tremendous costs that are staring us in the face, are they not?

Mr. Byrd: They are indeed. It is amazing.

Mr. Sarbanes: I think it is a very important service the Senator is rendering in order to lay this out. Many people seem to be skipping right over this dimension, in terms of evaluating the path we should follow in dealing with the challenge we confront in the region.

Mr. Byrd: Scriptures say that the wages of sin is death. We are not being told what the wages of this war are going to amount to. There is no discussion. One may be led to believe that this is going to be like a video game: It will be just over in a matter of moments, in days or weeks. There is no discussion of the cost. There is no estimate.

Now, I find it very hard to believe that the administration has not carefully explored the potential cost of what the American people are going to be asked to bear; and I think the polls we read about, which indicate a pretty high degree of support for the President in his passion to lead us into this war--I don't believe those people who are asked questions have any idea whatsoever as to what the costs are going to be. Why should they? We ourselves don't have any idea. The administration is not presenting us with any estimates of the cost. This seems to me to be strikingly strange.

We are being led into a war--led into a war--by an administration that makes no effort whatsoever to tell the American people what they are likely to pay in treasure, in lives, and especially with regard to a postwar Iraq. I think it is going to be like a bottomless pit.

Mr. Sarbanes: I thank the Senator for bringing this to our attention. It is an extremely important point, and the Senator is absolutely right. It has simply been glossed over in any consideration of this matter.

Mr. Byrd: Oh, yes, glossed over. There seems to be no thought given to it. I want to tell the Senator from Maryland that we on the Appropriations Committee and the American taxpayers are going to learn about it at some point when it is over, and the costs of this war may be colossal.

The time to ask questions is now, not a year from now, not when the body bags start coming back, not when the paying of the toll is coming due.

Madam President, I thank the distinguished Senator, one of the most able Senators I have ever seen in my 45 years in this body and in my 50 years on Capitol Hill. He is on committees that know something about dollars and cents and how they add up. I thank him for his incisive questions.

Mr. Sarbanes: I thank the Senator.

Mrs. Boxer: Madam President, will my friend yield briefly for a followup to Senator Sarbanes' questions?

Mr. Byrd: Madam President, I do yield.

Mrs. Boxer: I thank my friend. I wish to add my voice to that of Senator Sarbanes and thank the Senator from West Virginia for his great leadership. I want him to know that in California, my constituents have talked to me about the Senator's statements many times. I spent the week in California, and they have received through e-mail a copy of the most recent statement Senator Byrd made on the Senate floor. It gives them hope to know that he is out here with all his years, his sage years here, and it really helps. It is a great help to me as well as a newer Senator, although one who has been here for 10 years and 10 years on the other side.

I wish to pick up on the questions of, as we look at the costs of this war, to set aside the human costs, about which I have spoken at length and about which the Senator from West Virginia has continually been so eloquent, there is also the cost, for example, of payments to our friend and ally, Turkey, which, as I understand it, also is not in the budget request; am I correct?

Mr. Byrd: The able Senator is correct.

Mrs. Boxer: We are hearing everything from $6 billion in cash to an additional $10 billion to $20 billion in loan guarantees, and yet not a word in the budget. I wish to ask a final question of my friend, and that is, I was amazed to read that our friend, Carl Levin, on the Armed Services Committee, was asking questions of the Pentagon about how many troops would be needed in the aftermath of war, immediately following perhaps for 2 years, perhaps longer, the number of troops that need to be put out there. The answer was 200,000 troops, and it took the breath of many of our colleagues. Again, I ask my friend a question: Is there any mention of that fact in the 2004 budget and the impact of that on our budget?

Mr. Byrd: No, there is no mention of that fact. I must say, I have been informed that figure was inaccurate and that the general who used that figure later retracted the figure.

Mrs. Boxer: Does my friend know what they are talking about in terms of the number of troops? I suppose a lot would depend upon whether we have a lot of our allies with us, would it not?

Mr. Byrd: I am sure it would depend in great measure upon that. I do not think the administration has made any presentation of such a figure at all. I understand the British are going to supply 26,000 personnel, but there is no indication of what the other countries--and there are supposed to be a considerable number of other countries that would be supporting us, but nobody has indicated how many troops those other countries are going to present, and I am not sure they could present a great number. Angola, Cameroon, there are various and sundry other nations, some of which names I am almost unfamiliar with. They are included in this array of allies we are going to have supporting the effort.

(Mr. Cornyn assumed the Chair.)

Mrs. Boxer: In closing, I again thank my friend very much. The fact that a general, a very highly placed general, would come out with a number that is not correct, is in itself astounding. It means he certainly is not informed either. Not only are we uninformed, but he is uninformed, and this should give even more pause about this whole situation. I thank my friend for the energy he is putting into this issue. Again, my people in California are very grateful for what the Senator from West Virginia is doing.

Mr. Byrd: Mr. President, I thank the distinguished Senator, and I thank the people of California for their interest in the subject matter, and they certainly should be interested in it.

No one likes to talk about putting a price tag on national security, but these costs simply cannot be ignored in light of our current sagging economy and given a projected budget deficit of $307 billion for the fiscal year 2004. Remember--remember, Mr. President--this Government is going to have to borrow the money to finance this war. The total price of a war in Iraq could easily add up to hundreds of billions of dollars, even a trillion or more, overwhelming a Federal budget that is already sliding into deep deficits and warping the U.S. economy and impacting the economies of other nations for years to come. And, unlike the gulf war in 1991, many of our allies are unlikely to want to help much in defraying these costs.

Right now, the administration is trying to coax other nations to join the "coalition of the willing" by paying them, not by asking them to help us pay for the war. A "coalition of the willing," or a COW for short. It appears to me that the U.S. is the "cow"--the cash cow in this instance. We are the ones who are being milked.

The administration reportedly has negotiated a multibillion-dollar package of grants and loans for the Republic of Turkey for use of its bases to open a possible northern front against Iraq. The administration is negotiating similar multibillion-dollar packages with Egypt, Israel, Jordan, and other allies in the Middle East. I wonder if Members are aware of the details of any of these deals in the works or their projected costs over time.

I believe the cost of this war will be staggering.

We know that our Nation's most precious treasure, the lives of our young men and women in uniform, will most certainly be threatened. But we do not know how great the risk is because the administration will not talk about its plans.

In addition, the cost in terms of taxpayer dollars will be absolutely enormous. We hear of negotiations ongoing with Turkey that are in the area of $30 billion. We learn of requests from Israel for $12 billion. In addition, Jordan wants to be compensated. We read that negotiations are underway to provide economic assistance to Mexico, Chile, and various African nations, all of which are members of the United Nations Security Council.

Where will this all end? Where? How many nations will be promised American economic assistance just for their tacit support? And how strong is support that can be bought with promises of American dollars? This is no way to operate. This is no way to fight a war.

If the case against Saddam Hussein were strong enough on its merits the United States would not have to buy the support of the international community. If the world truly believes that Saddam Hussein poses an imminent threat, then let the world say so clearly. But do not taint that decision, do not taint the possible sacrifice of American soldiers, sailors, and airmen, by prying open the door to war with a blank check from the American taxpayers.

If war is undertaken without U.N. sanction or broad international support, the United States taxpayer can expect to pay the costs of the war for decades and pay the interest costs for decades more.

And that is to say nothing about the larger macroeconomic costs to the economy. The economic ripples of a war could spread beyond direct budgetary costs into international energy markets through higher oil prices. The psychological effects of a war in Iraq, especially if it initiates new terrorist attacks around the globe, could further scare the already jittery financial markets and rattle consumers.

If the war goes badly--and it could. Who knows? If the war goes badly, either through heavier than expected causalities, protracted bloody urban warfare, massive foreign denunciations, chemical and biological warfare, or major terrorist attacks here and abroad, we may be plunging our economy into unfathomable debt which this nation cannot easily sustain.

But even if one discounts these scenarios as unlikely, and sets them all aside, the potential costs of a limited war in Iraq could continue to pile up for years, depending on the total damage to Iraq, the civilian casualties, and the possibility that the war's effects could spread into other countries.

This is a dangerous and damaging game the administration is playing with the American public--with you, you who are looking through those electronic lenses at the Senate. Glossing over the cost of a war with Iraq may make it easier to win short-term support. But without any serious attention to costs, the American people cannot be engaged in a fulsome public discussion about the eventual wisdom of undertaking this war. Public support cannot be sustained to accomplish our post-war goals in Iraq if the Nation has been misled about the duration and difficulty and costs of such a conflict. We cannot treat the citizens of this Nation as if they are children who must be fed a fairy tale about fighting a glorious war of "liberation" which will be cheap, short and bloodless. If the President is going to force this Nation to engage in this unwise, potentially disastrous, and alarmingly expensive commitment, he must lay out all of the costs and risks to the Nation.

Now we will come back to these lines again and again. If I am not here, the American people will still come back to the record that is being written.

What is particularly worrisome is how naively the idea of establishing a perfect democracy in Iraq is being tossed around by this administration. If the administration engages in such a massive undertaking without the American people understanding the real costs and long-term commitment that will be required to achieve this visionary scheme, our efforts in Iraq could end with chaos in the region. Chaos, poverty, hopelessness, hatred--that is exactly the kind of environment that becomes a fertile breeding ground for terrorists.

The administration is asking the American public and the international community to support this war. The administration must also put all of its cards on the table. A list of real risks and down sides do the Nation no good locked in Donald Rumsfeld's desk drawer. They must be brought into the sunshine for the people to assess.

The American people are willing to embrace a cause when they judge it to be noble and both its risks and its benefits are explained honestly to them. But if information is withheld, long-term political support can never be sustained. Once the order is given and the bombs start falling, the lives of American troops and innocent civilians on the ground hang in the balance. Once "boots are on the ground," concerns about the monetary cost of war necessarily take a back seat. This nation will not shortchange the safety of our fighting men and women once they are in harm's way.

But our people and this Congress should not have to wait until our troops are sent to fight to know what we are facing, including the painful costs of this war in dollars, political turmoil, and blood.

In a democratic-Republic, secrecy has no place. Hiding information from the public to rally support behind a war, at the very time when the government should be striving for maximum trust will eventually undermine our nation's strength. This conflict will be paid for with the people's treasure and the people's blood. This is no time to affront that sacrifice with beltway spin and secrecy.

I yield the floor and suggest the absence of a quorum.

The Presiding officer: The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. Feingold: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The Presiding officer: Without objection, it is so ordered.

Mr. Feingold: Mr. President, for the past few weeks, we have had a vigorous debate on the floor and in the country on this nomination. I discussed my reasons for opposing Mr. Estrada's nomination before the recess. As I said then, I would probably vote to confirm Mr. Estrada to a lower court. But for this crucial court, at this crucial time, he is not the right person for the job. I have reached that conclusion in part because Mr. Estrada gave us so little to work with in trying to understand what kind of judge he would be. When we are talking about a lifetime appointment to the second highest court in this country, we cannot be expected to take it on faith that Mr. Estrada will be a fair and impartial judge, with no ideological axe to grind. The Senate's role is too important to just "hope for the best." No, when we are asked to confirm a nominee to such a significant post, we have a right to expect that nominee to be forthcoming in answering our questions, and we have a right to expect the administration to be cooperative in providing any information that is relevant to making our decision. That is what the advice and consent process is about. Not some kind of phony "consultation", and certainly not a rubberstamp for the President's nominees.

Today I want to respond to some of the arguments that have been raised by those who support the nomination. Many of the arguments come in the form of twisting and misstating the reasons given by opponents, in order to ridicule them. Many have been creating straw men in order to knock them down.

For example, we have heard numerous times that Senators oppose Mr. Estrada because he has no judicial experience, and the answer to that straw man is that many distinguished judges had no judicial experience. That is certainly true. I agree with that. Some great appellate judges had no prior judicial experience. Some of them sat or sit on the DC Circuit.

But those of us who note Mr. Estrada's lack of judicial experience are not saying that that should disqualify him from serving in this position. What we are saying is that his lack of experience means he lacks a record to evaluate, unlike many of the other individuals that President Bush has nominated to the circuit courts, who have served for many years as US District Court judges. At the same time, Mr. Estrada has not been a law professor and written scholarly articles for publication. His lack of judicial experience is part of his lack of a record that we can review in order to see what kind of judge he will be.

That brings me to the Solicitor General memos. In a way, this is really the crux of the problem with Mr. Estrada. Because Mr. Estrada has no judicial experience, because he has not written articles as a law professor, because he is so young and some of his most significant legal experience was as a lawyer in the Solicitor General's office, and because questions have been raised about his performance in that office, we have asked to see the memos that he wrote to his superiors on questions such as whether the United States Government should appeal an adverse ruling to the Supreme Court or whether it should file an amicus brief in a case that the Supreme Court has decided to hear.

This request was originally made by then Chairman Leahy in May 2002, months before Mr. Estrada had his hearing before the Senate Judiciary Committee. So the claim that the request for these documents is a last minute effort to derail the nomination is patently untrue. We have been seeking these documents for nearly a year now, and the administration has been stonewalling for nearly a year now.

I am afraid I have to say it has also been stonewalling in a really disingenuous way. The administration, echoed by supporters of Mr. Estrada here on the floor, has claimed that our request is unprecedented, that no such memos have ever been turned over to the Senate. One Senator stated unequivocally:

Never in the history of the Justice Department have those type of materials that are privileged, confidential work product materials been given to this branch of Government or any other branch.

That is a pretty strong statement. It is also untrue. For example, during the consideration of the nomination of William Bradford Reynolds to be Associate Attorney General at the Department of Justice, exactly these kinds of memos--recommendations on appeals and amicus briefs written by line attorneys--were turned over to the Judiciary Committee. Then, during the consideration of the nomination of Robert Bork to the Supreme Court, a large amount of material was turned over to the Committee, including memos written to or from Judge Bork when he served as Solicitor General. In particular, memos to Judge Bork from Judge Frank Easterbrook, who then served in exactly the same position as Mr. Estrada did when he was in Solicitor General's office, were made available to the Senate.

Still the Justice Department disputed the facts and continued to insist that only limited materials were made available during the Bork nomination and other materials must have been leaked. But Senator Leahy has disclosed a 1988 letter from Acting Assistant Attorney General Thomas Boyd to Senator Biden, requesting the return of materials that had been turned over during the confirmation proceedings. Mr. Boyd states:

[M]any of the documents provided to the Committee, "reflect or disclose purely internal deliberations within the Executive Branch, the work product of attorneys in connection with government litigation or confidential legal advice received from or provided to client agencies within the Executive Branch."

We provided these privileged documents to the Committee in order to respond fully to the Committee's request and to expedite the confirmation process.

It is abundantly clear that the Justice Department has provided these kinds of materials in the past, despite their confidentiality. And that is as it should be. I have enormous respect for some of the former Solicitors General who have written to us and given their view that these memos should not be released. But with respect, they are not Senators. They are not accountable to constituents for the votes that they take on whether to confirm judicial nominees. They have never made policy for this body, and unless they run for election in the States where they live, they never will.

The White House and some of our colleagues have also argued that these kinds of memos have not been requested of all nominees who once served in that office or in a similar position in the Department of Justice. True enough. But that only underscores how important our request is. I say again, it is because Mr. Estrada has no judicial experience, because he has not written articles as a law professor, because he is so young and some of his most significant legal experience was as a lawyer in the Solicitor General's office, and because questions have been raised about his performance in that office, that we have asked to see these materials.

The administration's failure to comply with our legitimate request, a request which is strongly supported by precedent in the Judiciary Committee's handling of past nominations, frankly leads to the question of whether there is something to hide in those memos. We will never know until we have a chance to read them. But what we do know is that until they are turned over this logjam will continue.

Now some have made the argument on this floor and in the press that our action in delaying a vote on Mr. Estrada is unprecedented. That is plainly not the case, and again illustrates the amount of distortion that is occurring in this debate. According to CRS, there have been cloture motions filed on 14 judicial nominees since 1980. Just three years ago, cloture votes were required before two of President Clinton's nominees to the Ninth Circuit, Marsha Berzon and Richard Paez, could be confirmed. When these nominations were finally reported from committee after years and years of delay, motions to proceed to their consideration on the floor were defeated by the Republican majority. Over 5 months later, the nominations were finally brought to the floor. The two nominations were considered and debated together, and a cloture motion was required to end the debate on each nominee.

It is true that both the majority leader at the time, Senator Lott, and Senator Hatch, supported cloture on the nominations. But still, there certainly was a filibuster on those nominees. That is what cloture votes do; they end filibusters. Senator Bob Smith was leading the opposition to the nominees. He put out a press release indicating that he was filibustering to stop them. Late last week, we heard from one Senator that this is the first "true filibuster" of a Circuit court nominee. I am still waiting to hear an explanation of what a true filibuster is compared to what happened with Judges Berzon and Paez. Is a "true filibuster" only one that seems to have the votes to succeed? That is an interesting definition.

Let us not forget that in so many other cases during President Clinton's term in office, there was no filibuster because his nominees were never given a hearing or a vote in the Judiciary Committee. That is what happened to two nominees to the Circuit to which Mr. Estrada has been nominated. Alan Snyder, nominated by President Clinton in June of 1999, finally had a hearing in May of 2000, but never received a vote in Committee. Elena Kagan, nominated in September 1999, never even had a hearing in the Committee. So how exactly is that fairer treatment than a filibuster? The claims that this nominee is subject to unprecedented unfairness because an up or down vote is not being permitted at this time ring hollow.

It is time for the Administration to face up to what happened over the last six years that President Clinton was in office. The DC Circuit is a very good place to start. There are two more vacancies on that circuit. If President Bush were to resubmit Mr. Snyder and Ms. Kagan's names, the court would remain balanced, and the President could really change the tone of the judicial nominations issue. For now, we are faced with an effort to fill a slot held open for years of a Democratic presidency with a nominee whose views are a mystery. That is not acceptable and we must continue to resist it.

I yield the floor. I suggest the absence of a quorum.

The Presiding officer: The clerk will call the roll.

The bill clerk proceeded to call the roll.

Mr. Feingold: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The Presiding officer: Without objection, it is so ordered.

medicare equity

Mr. Feingold: Mr. President, I would also like to address one of the most important issues facing my state of Wisconsin, as well as many others across the country, the need to restore fairness to the Medicare program.

During any debate of Medicare reform, one of Congress' top priorities should be to reduce regional inequalities in Medicare spending and support providers of high-quality, low-cost Medicare services.

The high cost of health care in Wisconsin is skyrocketing: A recent survey found that the cost of health benefits for employees in Wisconsin rose 14.8 percent last year, to an average of $6,940 per employee. That is 20 percent higher than the national average of $5,758 for workers in businesses with 500 or more employees. These costs are hitting our state hard--they are burdening businesses and employees, hurting health care providers, and preventing seniors from getting full access to the care that they deserve.

One of the major contributing factors to the high cost of care in our state is the inherent unfairness of the Medicare Program. With the guidance and support of people across our state who are fighting for Medicare fairness, I have proposed legislation to address Medicare's discrimination against Wisconsin's seniors, employers and health care providers. The Medicare program should encourage the kind of high- quality, cost-effective Medicare services that we have in Wisconsin. But as many in Wisconsin know, that is not the case.

To give an idea of how inequitable the distribution of Medicare dollars is, imagine identical twins over the age of 65. Both twins worked at the same company all their lives, at the same salary, and paid the same amount to the federal government in payroll taxes, the tax that goes into the Medicare Trust Fund. But if one twin retired to Louisiana or Florida and the other retired in Eau Claire, Wisconsin, they would have vastly different health care options under the Medicare system. The twin in Louisiana or Florida would get much more.

For example, in most parts of Louisiana and Florida, the first twin would have more options under Medicare. The high Medicare payments in those areas allow Medicare beneficiaries to choose between an HMO and a traditional fee-for-service plan, and, because area health care providers are reimbursed at such a high rate, those providers can afford to offer seniors a broad range of health care services.

The twin in Eau Claire does not have the same access to care--there are no options to choose from in terms of Medicare HMOs, and sometimes fewer health care agencies that can afford to provide care under the traditional fee-for-service plan.

How can two people with identical backgrounds, who paid the same amount in payroll taxes, have such different options under Medicare?

They can because the distribution of Medicare dollars among the 50 states is grossly unfair to Wisconsin, and much of the country. Wisconsinites pay payroll taxes just like every American taxpayer, but the Medicare funds we get in return are lower than those received in many other states. Legislation that I and others have proposed will take us a step in the right direction by reducing the inequities in Medicare payments to Wisconsin's hospitals, physicians, and skilled nursing facilities.

Last year, with the introduction my Medicare fairness legislation and the efforts of many other Senators, including both the chair and ranking member of the Finance Committee, we put Medicare fairness issues front and center in Congress. We saw many successes. The Senate Budget Committee approved my amendment to promote Medicare fairness in any Medicare reform package. A wide range of Senators from both parties endorsed my proposal to create a Medicare fairness coalition. The House passed a number of Medicare fairness provisions that were a result of these successes, and both House and Senate leadership endorsed Medicare fairness issues.

Now that we have finally brought these issues the attention that they deserve, we need to build on that momentum to pass Medicare fairness provisions into law. Some of this increased awareness can be seen in the recently passed omnibus spending bill. While I opposed this legislation, I was especially pleased that it contained provisions that take us a step toward fairness in the distribution of Medicare dollars in Wisconsin and other states across the country. By increasing the Medicare payments to small urban and rural providers, we are closer to reducing the inequities that plague the Medicare system.

I hope that these provisions are only the first steps that Congress takes to restore Medicare fairness for Wisconsin and other affected States. Medicare shouldn't penalize high-quality providers of Medicare services, and most of all, Medicare should stop penalizing seniors who depend on the program for their health care. They have worked hard and they have paid into the program all their lives, and in return they deserve full access to the wide range of benefits that Medicare has to offer.

So I look forward to working with my colleagues to move legislation forward. I believe that we can rebalance the budget, while at the same time encouraging efficient, quality-enhancing Medicare services.

Mr. President, I have one other topic.

supporting first responders

Mr. President, I would also like to take this opportunity to talk about the need for Congress to help first responders do what they do so well: protect our communities in an emergency.

The Department of Homeland Security is creating a massive shift in the Federal Government. Nobody will feel the impact of this shift more than the brave men and women who work in law enforcement, as firefighters, as rescue workers, as emergency medical service providers, and as first responders. We must make sure that these first responders have the resources that they need.

While I commend the administration for raising the funding dedicated to first responders in the President's budget, I am concerned that these new layers of bureaucracy and reorganization could reduce these funding levels or, just as harmfully, put up barriers to first responders actually receiving these funds.

The Federal agencies in the proposed Department of Homeland Security must listen to the priorities of our communities. After all, the needs of first responders actually vary among regions, as well as between rural communities and urban communities. In Wisconsin, I have heard needs ranging from training, to equipment, to more emergency personnel in the field, just to name a few.

So I have proposed legislation, along with my friend from Maine, the chair of the Governmental Affairs Committee, that would promote effective coordination among Federal agencies under the Department of Homeland Security and ensure that our first responders--our firefighters, law enforcement, rescue, and EMS providers--can help Federal agencies and the new Department of Homeland Security improve existing programs and future initiatives.

This is what it would do: It would first establish a Federal Liaison on Homeland Security in each State and coordinate between the Department of Homeland Security and State and local first responders. This office would serve not only as an avenue to exchange ideas, but also as a resource to ensure that the funding and programs are effective.

For example, my hope is that the Homeland Security Department will make programs such as the Fire Act a high priority. The Fire Act provides grants directly to fire departments across our Nation for training and equipment needs. Last year, I visited one excellent example of this program in West Allis, WI, where the department received a grant in 2001 to implement a wellness and fitness program for their firefighters. I am told that it is one of the first departments in the State to meet the goals of this program, and I commend the department for its efforts.

Our legislation would also direct the agencies within the Department of Homeland Security to coordinate and prioritize their activities that support first responders, and at the same time, ensure effective use of taxpayer dollars. As part of this coordination, the First Responders Support Act would establish a new advisory committee of those in the first responder community to identify and streamline effective programs.

Last year, both the original Senate and House homeland security bills lacked the provisions needed to ensure that the new Department of Homeland Security communicates and coordinates effectively with first responders.

During the Senate Governmental Affairs Committee markup of the homeland security bill last year, I was pleased to see the committee added our First Responders Support Act to the legislation. It did so knowing that we would have to reconcile the overlap between our legislation and the language in the chairman's mark creating an office for State and local government coordination. Our amendment, which was approved by the full Senate, did exactly that. Unfortunately, our proposal was dropped from the final bill during conference.

I hope congress can make enactment of this legislation one of its priorities this year. We must be aggressive in seeking the advice of our first responders, and helping them to get the resources that they need to provide effective services. They are on the front lines, and they deserve our support.

In almost any disaster, the local first responders and health care providers play an indispensable role. If the Department of Homeland Security is to be effective, we need to ensure that the resources are delivered to the front line personnel in an effective and coordinated manner. I urge my colleagues to join me in passing this proposal and others to support our first responders.

Mr. President, I yield the floor and suggest the absence of a quorum.

The Presiding officer: The clerk will call the roll.

The bill clerk proceeded to call the roll.

Mr. Coleman: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The Presiding officer: Without objection, it is so ordered.

Mr. Coleman: Mr. President, I have been a Senator for a little less than 2 months. The same is true for The Presiding officer: And we ran at a time when I believe the message from the people--and not just of Minnesota but I believe the people in America--was one that it is important the Senate should get things done. The 170th Congress had not passed appropriations bills, had not passed disaster assistance, had not passed a prescription drug benefit for seniors, and had not passed a budget. A lot of serious work needed to be done. That was the message.

We are here now--in a little less than 2 months--and we are caught up in a filibuster. I read about filibusters when I was a kid. This basically means the Senate is spending a lot of time debating the nomination of Miguel Estrada to be a judge in the Court of Appeals for the District of Columbia Circuit, and the distinguished members of the minority party are not going to allow that nomination to get to a vote unless there are 60 Senators who vote for cloture to put an end to the filibuster.

During the course of the discussion about Miguel Estrada, there have been some wonderful presentations on both sides of the aisle about the importance of the Constitution, the very sacred obligation of the Senate to advise and consent on nominations made by the President of the United States on judicial appointments.

In those wonderful discussions talking about this sacred obligation, my fear is that the public may not understand that obligation is not to have 60 Senators vote to confirm a nomination, that to require 60 votes is what is known as a supermajority. The Constitution reserves supermajorities to very specific instances--the approval of treaties-- but not for the confirmation of Presidential nominees to the Federal courts. That should take a simple majority.

So what we are faced with today is the very serious issue of an effort to change the constitutional standard for the selection of judges. And for all of us who love this Constitution, who understand its greatness--and I think through Divine guidance given to those who stood before us in chambers and in the Old Senate Chamber--to change the standard for Miguel Estrada is simply wrong.

It is not the right thing to do. What our distinguished colleagues in the minority party should do is the right thing and simply give the Senate a chance to vote on the nomination of Miguel Estrada--vote and say you need 51 votes to confirm this nomination. That is the constitutional standard.

The Web site of one of the most egregious liberal Washington interest groups has a number of troubling statements regarding the nomination and confirmation process for members of the judiciary. One memorandum discusses "the approaching armageddon on judicial nominations." This extreme and inflammatory headline suggests an all-out, no-holds-barred, anything-goes campaign against judicial nominees by those opposing the President's choices. Another headline on the same Web site demands its members and visitors to "tell Senators: Filibuster the Estrada nomination."

I do not believe there has been, in the history of this esteemed body, a filibuster of a circuit judge. I do not believe there has been a partisan filibuster of the type we are experiencing right now in the Senate.

On Wednesday, February 5, 2003, the Washington Post published an editorial referencing this Web site and condemning such tactics and urged a vote on the nomination of Miguel Estrada.

The editorial in the Washington Post correctly points out that a filibuster would be "a dramatic escalation of the judicial nomination wars." It states that Democrats who disagree with the nominee may vote against him, but they should not deny him a vote. The editorial concludes that Mr. Estrada's nomination should not be stalled any longer, stating:

It certainly doesn't warrant further escalating a war that long ago got out of hand.

As I listen to the debate, it seems that there are a lot of feelings that somebody did something in the past and now we are going to pay back today. There was an earlier time of feuds between the Hatfields and the McCoys, and the Earps and the Youngers. That is not the way to act in the 21st century, when we face the challenges of a potential war with Iraq and with a struggling economy and with moms and dads worried about feeding and clothing their kids and sending their kids to good schools. We should not be caught up in this kind of partisan feuding, saying you did something in the past to our nominees, so now we are going to do the same to yours today. Put it aside.

I am a product of the sixties philosophy. Let today be the first day of your life. We are never going to be younger than we are today, Mr. President. I think we have to put the past behind us. I don't know who was at fault in the past. I don't know about other nominees and the time it took them to get to the floor of the Senate, why they were delayed, for whatever reasons. All I know is that, today, Americans are crying out for the Senate to simply get the work of the people done. We can get the work done if we give Miguel Estrada a chance to simply have an up-or-down vote. That is all it is.

We should not change the constitutional standard. We should not be requiring 60 votes to confirm a judicial nominee. That is not what the greatness of this institution is about. That is not what the Constitution, which has preserved this country and set the standard for democracy, intended.

Let us have a clear understanding of what a modern day filibuster means. Those advocating this obstructionist tactic aren't demanding the opportunity for extended debate; that is already available to all Senators. The practical matter of a filibuster is to prevent a vote on the nominee, unless cloture is obtained. Of course, cloture requires 60 votes. As I said before, those calling for a filibuster on this nominee are demanding a supermajority vote. That is not what the Constitution says. That is not what the Constitution dictates. That is not the precedent and pattern we should be following. This is against the traditions and practices of this body. In fact, in only one instance did the Senate reject cloture and defeat a judicial nominee. That was in 1968, on the nomination of Justice Abe Fortas to be Chief Justice of the Supreme Court.

As I noted before, that was a bipartisan filibuster--not the party- line filibuster we are seeing waged here today against Mr. Estrada.

I agree with the previous chairman of the Judiciary Committee, a Democrat, who said in a speech on the Senate floor--I believe it was the Senator from Vermont:

I have stated over and over again on this floor . . . that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported, that I felt the Senate should do its duty.

Let the Senate do its duty. Let those who oppose the nomination of Miguel Estrada have their right to cast their vote, have a right to have their say, for whatever reasons. It is within their discretion to choose their reason to say no. On the other hand, let us follow the dictates of our Constitution and not change the constitutional standard. Let us give Miguel Estrada the opportunity simply for an up- or-down vote, and let a majority of Senators in the Senate--and I believe that a majority, which would be a bipartisan majority, not just folks of one party, but distinguished members of the minority party who support the nomination, would not change the constitutional standard.

During the course of this debate, there have been many serious misrepresentations of the record on Mr. Estrada. I want to address in some detail one of the most serious distortions, which concerns the answers that Mr. Estrada gave to questions that members of the Judiciary Committee asked him.

The charge being leveled against Mr. Estrada is that he did not answer questions put to him in general, and he did not answer questions about his judicial philosophy in particular. I have to say, that charge is pure bunk.

I sat here and listened as some of my colleagues on the other side of the aisle said he didn't answer questions. I have the transcript in front of me. He was there for a full day. He answered question after question. He answered followup questions, written questions. He answered the questions.

Again, it is important to remember the circumstances under which this hearing took place. That hearing was held September 26, 2001, chaired by my Democratic friend, the senior Senator from New York, with whom I went to grade school and high school in Brooklyn. Both Democratic and Republican Senators asked scores of questions, which Mr. Estrada answered. If any Senator was unsatisfied with Mr. Estrada's answers, every member of the committee had an opportunity to ask Mr. Estrada followup questions. I believe only two of my Democratic colleagues did that.

A number of questions that Mr. Estrada was asked directly or indirectly tried to pry from him a commitment on how he would rule on a particular case. Previous judicial nominees who were confirmed by the Senate have rightly declined to answer questions on that basis, as Mr. Estrada did. Let me give you some examples.

In 1967, during his confirmation hearing for the Supreme Court, Justice Thurgood Marshall responded to a question about the fifth amendment by stating:

I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed and sit on the Court, when a Fifth Amendment case comes up, I will have to disqualify myself.

If I may digress, one of the other charges against Mr. Estrada is that he did not have judicial experience. During the course of this debate, it has been highlighted again and again that many distinguished judges--Supreme Court Judges and circuit court judges--did not have judicial experience before they were appointed to the court. Mr. Estrada, in fact, clerked for both a Federal court judge and U.S. Supreme Court Justice Anthony Kennedy. When Thurgood Marshall was appointed, I believe, to the District Court of Appeals, he did not have prior judicial experience. I think it was Justice Holmes who did not have it. I could go on and on. So that charge, too, is pure bunk.

During Sandra Day O'Connor's confirmation hearing, the Senator from Massachusetts, the former chairman of the Judiciary Committee, defended her refusal to discuss her views on abortion. He said:

It is offensive to suggest that a potential justice of the Supreme Court must pass a presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single- issue interest group.

It is interesting, if you look at Mr. Estrada's response on the question of Roe v. Wade, he said very clearly in response to a question of the Senator from California that he has his views, but his view of the judicial function "does not allow me to answer that question." But he said he has a personal view on the subject. Again, he goes back to his view of judicial function. Then he goes on to say:

And the reason I have not done any of those things is that I view a system of law in which me as an advocate and possibly if I am confirmed as a judge, have the job of building on the wall that is already there, not to call it into question. I have no particular reason to go back and look at whether that decision was right or wrong as a matter of law, as I would if I were a judge that was hearing the case for the first time.

Then he goes on to say:

It is there. It is the law and it has subsequently been refined by the Casey case, and I will follow it.

The Senator from California asked:

Do you believe it is settled law?

The answer is:

I believe so.

So again, he has done what other nominees have done and he will not discuss his personal feelings. He will not discuss his personal philosophy on that issue, but he says it is settled law--settled law.

Likewise, Justice John Paul Stevens testified during his confirmation hearing:

I really don't think I should discuss this subject generally, Senator. I don't mean to be unresponsive, but in all candor, I must say there have been many times in my experience in the past 5 years when I found that my first reaction to a problem was not the same as the reaction I had when I had the responsibility of decisions, and I think if I were to make comments not carefully thought through, they might be given significance they really did not merit.

Justice Sandra Day O'Connor was confirmed. Justice John Paul Stevens was confirmed.

Justice Ruth Bader Ginsburg also declined to answer certain questions, stating:

Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions before the Supreme Court. Were I to rehearse here what I would say or how I would reason on such questions, I would act injudiciously.

In addition, as my colleague from Nevada yesterday noted, Justice Ginsburg just last year said in dissent in the case of Republican Party of Minnesota v. White:

In the context of the Federal system, how a prospective nominee for the bench would resolve certain particular contentious issues would certainly be "of interest" to the President and the Senate. . . .But in accord with a longstanding norm, every Member of this Court declined to furnish such information to the Senate and presumably to the President as well.

I believe I recall in reviewing the transcripts of the hearing of Mr. Estrada--I am not a member of that committee, but I have taken the time to review some of the transcripts--he was asked by one of my distinguished colleagues on the other side of the aisle whether he was a strict constructionist. I believe his response was he was a fair constructionist.

A further discourse by my distinguished colleague from the other side of the aisle, I think from North Carolina: Did the President talk about strict constructionist? I am paraphrasing. Mr. Estrada came back and said: I did not talk about that with the President, but he talks about being a fair constructionist.

That is the kind of judge the people of the United States want to sit on the Circuit Court of Appeals.

I also note, in contrast to the characterization of my colleague from Nevada, however, Justice Scalia in his majority opinion did not take issue with that description, as Mr. Gonzales pointed out in his letter. Justice Scalia said:

Nor do we assert that candidates for judicial office should be compelled to announce their views on disputed legal issues.

Like these previous nominees, all of whom the Senate confirmed, Mr. Estrada refused to violate the code of ethics for judicial nominees by declining to give answers that would appear to commit him on issues that he would be called upon to decide as a judge. Again and again, he provided answers in direct response to questions that make his judicial philosophy an open book.

Let me share some specific examples. Responding to a question to identify the most important attribute of a judge, Mr. Estrada answered that it was to have an appropriate process for decisionmaking. That, he said, entails having an open mind, listening to the parties, reading their briefs, doing all the legwork on the law and facts, engaging in deliberation with colleagues, and being committed to judging, as a process that is intended to give the right answer.

These are not extreme views. I do not think we could ask any more from any judge.

When asked about the appropriate temperament of a judge, he responded that a judge should be impartial, openminded, and unbiased, courteous, yet firm, and one who will give ear to people who come into his courtroom. These are the qualities of Miguel Estrada. He testified that he is and would continue to be the type of person who listens with both ears and would be fair to all litigants. Again, that phrase he used, he would be a fair constructionist.

Mr. Estrada was asked a number of questions about his views and philosophy on following legal precedent. Let me highlight a bit of that exchange.

Question:

Are you committed to following the precedents of higher courts faithfully and giving them full force and effect even if you disagree with such precedents?

Answer:

Absolutely, Senator.

Question:

What would you do if you believe the Supreme Court or the Court of Appeals had seriously erred in rendering decision? Would you apply that decision or use your own judgment of the merits, or the best judgment of the merits?

Answer:

My duty as a judge and my inclination as a person and as a lawyer of integrity would be to follow the orders of the higher court.

Question:

And if there were no controlling precedent dispositively concluding an issue with which you were presented in your circuit, to what sources would you turn to for persuasive authority?

Answer:

In such a circumstance, my cardinal rule would be to seize aid from any place where I could get it--related case law, legislative history, custom and practice, and views of academics on analysis of law.

That is the kind of judge we want. That is the kind of judge I think the Constitution intended us to have when it gave us this solemn responsibility of advising and consenting on judicial nominations. Again, not by changing the constitutional standard, but advising and consenting, allowing a majority of Senators in the Senate to advise and then consent on a nominee presented by the President but not requiring a supermajority.

These exchanges I have laid out clearly illustrate Miguel Estrada's respect for law and his willingness and ability to faithfully follow the law.

He further testified, in response to other questions:

I will follow binding case law in every case. Even in accordance with the case law that is not binding, but seems instructive on the area, without any influence whatsoever from any personal view I may have about the subject matter.

This is what we expect judges to do. I can see no good reason why anyone would be opposed to a nominee who promised to follow the law, a nominee who is highly qualified, a nominee who the American Bar Association in rating judges gave a unanimous--every person on the committee, and I presume they were not all conservative Republicans, every person on that review committee unanimously gave him the highest rating, the highest recommendation, which many of my distinguished colleagues on the other side of the aisle have called the gold standard. That is the way in which we should measure judges.

Now we have a judge in front of them who has passed the gold standard unanimously, who is highly educated, who at 17 years of age came to this country from Honduras and did not speak English well, graduated magna cum laude from Columbia, graduated magna cum laude from Harvard Law School, was editor of the Law Review, clerked for Federal and Supreme Court judges, worked, and came back to public service. Talk about the American dream.

Miguel Estrada, being given such great opportunity of education, is coming back and saying: I am going to give back to the community; I want to work in public service.

I had the chance to serve as solicitor general of the State of Minnesota. It is a solemn, high honor to represent your State or to represent your country, to work for your State or your country, to uphold its constitution.

It is important to note that every living former Solicitor General of the United States, four of whom are Democrats, stand with Miguel Estrada on one of the other issues that my distinguished colleagues from the other side have raised. They said they want some of his opinion papers. Yet Democrat Solicitors General--every one of them-- say, no, that is not appropriate; those should not be given up. That is not Miguel Estrada saying that. Those are the Solicitors General of the United States. Again, that is another argument that is a bogus argument, if I may be blunt.

When asked about the role of political ideology in the legal process, Mr. Estrada replied with a response that, in my view, was entirely appropriate and within the mainstream of what all Americans expect from their judiciary. He said:

[A]lthough 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 with an open mind and listen to the parties. And, to the best of his human capacity, to give judgment based solely on the arguments of law. I think my basic idea of judging is to do it on the basis of law and to put aside whatever view I might have on the subject to the maximum extent possible.

When asked about his views on interpreting the Constitution, Mr. Estrada was forthright and complete in his responses. For example, in exchange regarding the literal interpretation of the words of the Constitution, Mr. Estrada responded:

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 enumerated 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.

Mr. Estrada was asked questions about the appropriate balance between Congress and the courts. His answers made clear his view that judges must review challenges to the statutes with a strong presumption of the statute's constitutionality. For example, in responding to a question about environmental protection statutes, he stated:

Congress has passed a number of statutes that try to safeguard the environment. I think all judges would have to greet those statutes when they come to the court with a strong presumption of constitutionality.

At the same time, he recognized that as a circuit court judge he would be bound to follow the precedent established by Lopez and other Supreme Court cases. So it is clear from the record that Mr. Estrada did answer the questions put to him at his hearing. His judicial philosophy is an open book. But if my Democratic colleagues are still inclined to vote against him, misguided as I believe that choice to be, then they should have that right. Let them vote against him. Vote for him, vote against him. Do what their conscience dictates. Just vote. Do not change that magnificent, most wonderful constitutional standard that has guided us and kept this country together for over 200 years. Allow the Senate to exercise its duty. Allow each Member to vote their conscience. Just vote and end this filibuster.

I yield the floor.

[A]lthough 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 with an open mind and listen to the parties. And, to the best of his human capacity, to give judgment based solely on the arguments of law. I think my basic idea of judging is to do it on the basis of law and to put aside whatever view I might have on the subject to the maximum extent possible.

When asked about his views on interpreting the Constitution, Mr. Estrada was forthright and complete in his responses. For example, in exchange regarding the literal interpretation of the words of the Constitution, Mr. Estrada responded:

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 enumerated 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.

Mr. Estrada was asked questions about the appropriate balance between Congress and the courts. His answers made clear his view that judges must review challenges to the statutes with a strong presumption of the statute's constitutionality. For example, in responding to a question about environmental protection statutes, he stated:

Congress has passed a number of statutes that try to safeguard the environment. I think all judges would have to greet those statutes when they come to the court with a strong presumption of constitutionality.

At the same time, he recognized that as a circuit court judge he would be bound to follow the precedent established by Lopez and other Supreme Court cases. So it is clear from the record that Mr. Estrada did answer the questions put to him at his hearing.

His judicial philosophy is an open book. But if my Democratic colleagues are still inclined to vote against him, misguided as I believe that choice to be, then they should have that right. Let them vote against him. Vote for him, vote against him. Do what their conscience dictates. Just vote. Do not change that magnificent, most wonderful constitutional standard that has guided us and kept this country together for over 200 years. Allow the Senate to exercise its duty. Allow each Member to vote their conscience. Just vote and end this filibuster.

I yield the floor.

The Presiding officer: The Senator from California.

Mrs. Boxer: Madam President, I take this opportunity to address the Estrada nomination and a couple of other issues that the people in my State care a lot about.

Before he leaves, I wanted to say to my friend from Minnesota that I know he was not in the Senate during the last filibuster on the court nominee--actually, there were two including the Abe Fortas nomination in the 1960s--and they occurred in the year 2000. They were launched by Members of the Republican side of the aisle, and they were directed at a woman named Marcia Berzon and a man named Richard Paez.

n addition to the filibuster----

Mr. Coleman: Madam President, will the Senator from California yield?

Mrs. Boxer [continuing]: There was actually a vote to indefinitely postpone one of those nominees, the Hispanic nominee, Richard Paez.

Mr. Coleman: Madam President, will the distinguished Senator from California yield for a question?

Mrs. Boxer: I would be delighted to.

The Presiding Officer (Ms. Collins): The Senator from Minnesota.

Mr. Coleman: I ask the distinguished Senator from California, is it not true that in those instances when she talks about "filibusters"-- and I was not here, but I understand that those "filibusters" did not last more than a day or two--that in fact both of those nominees had a chance to be voted on by this body. Is that true?

Mrs. Boxer: My friend is incorrect. Here is what happened. It took 4 years, I say to my colleague, to get the Republicans to bring the nomination of Richard Paez to the floor of this Senate. How do I know? Because I had recommended Judge Paez first for the district court, where he got immediate approval.

I would like to answer my friend before I yield, and I will be glad to yield to my friend all night long, believe me, if he wants to stay and engage. So relax and we will get to his questions.

My friend was not here. It took 4 long years to get the Republicans to relent. This is Republicans, the Senator's party, who voted to seat him on the district court unanimously. When he was nominated for the circuit court, it took 4 years. There was extensive questioning back and forth, written questions, oral questions. Then there was a filibuster. My friend says it only lasted 2 days. It was 4 years and 2 days.

I say to my friend, the only reason in the world that filibuster was ended is because we had the votes to stop it. The Senator does not have the votes to stop this filibuster. If he did, it could be done in a minute. The reason there are not the votes is because this man will not answer questions, despite the fact that my friend read some answers. I have a lot of other things to put in the Record tonight that will challenge that.

Before he leaves, I say to my friend, in answer to his question and before I yield further, this was a clear filibuster. I am going to give a quote.

I must confess to being somewhat baffled that after a filibuster is cut off by cloture the Senate could still delay a final vote on the nomination.

I say to my friend, who called what happened to Richard Paez a filibuster? None other than the Senator's chairman, Orrin Hatch. It is in the Congressional Record.

I am glad to yield to my friend for a further question.

Mr. Coleman: Madam President, I ask the distinguished colleague from California again, in both instances is it not true that cloture was filed--we are talking about filibuster, not 4 years but filibuster debate on this floor--and both nominees were confirmed after cloture was invoked?

Mrs. Boxer: I say to my friend, the day this nomination was brought to the floor, the Republican side could have filed cloture, just as we did, but they are choosing not to do it. There can be a vote on cloture today. It could be tomorrow.

Not only that, when this man answers questions, the vote is going to be won. The Senator is going to have his vote. I have been around a long time in public life, 10 years in the House, and 10 years in the Senate. I have never seen such a systematic plan not to answer basic questions. Can anyone imagine a man who cannot answer a question if there was ever a Supreme Court case that he disagreed with? I daresay I do not know anyone in the country, lawyer or not, who agrees with the Dred Scott decision. I do not know any person who is willing to say now that he believes separate but equal, Plessey v. Ferguson, was rightly decided.

This man cannot even say which Justice, dead or alive, he would emulate most. It is unbelievable. Except when it is put in the context of who was advising this man, and we have seen it time and again on the floor. They basically said: Do not answer any questions. This is a lifetime appointment. Do not blow it.

Mr. Coleman: Madam President, will the distinguished Senator from California yield for two more questions?

Mrs. Boxer: Absolutely.

Mr. Coleman: Is it not true the Republicans filed cloture for both of the distinguished judges my colleague from California has mentioned, both Judge Paez and Judge Berzon? Secondly, if that is true, I ask my distinguished colleague from California if she would vote for cloture and support putting an end to this filibuster on the nomination of Miguel Estrada.

Mrs. Boxer: The bottom line is who can file cloture? The Democrats can file cloture on this nomination. The question is, Was there a filibuster? My friend stood up and said there has been no filibuster since Abe Fortas in the 1960s, when his own chairman, Orrin Hatch said:

I must confess to be somewhat baffled that after a filibuster is cut off by cloture the Senate can still delay a final vote on the nomination.

By the way, there was a filibuster on Marsha Berzon. My friend ought to know, in addition to the filibuster, after we had won the cloture vote on the Paez nomination, there was an incredible motion filed to indefinitely postpone the vote on the nomination. Imagine, there is this fight; it lasted 4 years and several days on a filibuster. We win this, we get the votes, and then there is a motion from a Republican to indefinitely delay the vote, and even Senator Hatch was stunned. He said he was baffled that could even happen.

So for the Senator to say there has not been a filibuster since the 1960s on a judge is false. His own chairman admitted there was a filibuster.

Not only did his side launch a filibuster--my friend was not here; I don't mean to take it out on you--but as someone who knew how fine these two nominees were, they faced that filibuster. They answered the questions over and over again and finally got a vote.

That is the system here. It is misleading to the American public to hear this day in and day out. "This is unprecedented to have a filibuster." What is unprecedented is that we have the votes to keep it going. You did not have the votes on your side to keep it going.

If my friend has no further questions, I will return to my original statement.

Mr. Coleman: Madam President, I have no further questions for my distinguished colleague from California.

Mrs. Boxer: I thank my friend.

The point I make tonight, among several, is that we have been charged--those who want more answers from Miguel Estrada--with doing something that has never been done before when, in fact, in the year 2000, two nominees to the Ninth Circuit Court were filibustered and one of the two was not only filibustered, but after he won cloture there was a motion to indefinitely postpone the actual vote on his nomination. I had never seen that. I hope I never see it again. The fact is, there have been two filibusters led by Republican Members and those were defeated.

The second fact is that one of those particular individuals was the first Mexican American to serve on the Central District Court of California and the Republicans held him up for 4 years before we were able to break the filibuster.

It was quite a situation. My friend from Minnesota said--I don't want to misquote him--something like "the judicial philosophy of this nominee is an open book," I think is what he said. It may be an open book, but it looks like this. This is the book. There is nothing on it.

When a candidate cannot say if there was ever a Supreme Court case with which they disagreed, this is going above and beyond stonewalling; or cannot say what Justice, dead or alive, he would emulate most, this is beyond stonewalling.

In my State we are very fortunate. We have reached agreement with Republicans in our State. We have a wonderful selection process for judicial nominees for the district court. Those individuals come before us and are screened by a joint committee. It is a great process. They answer questions. There are votes taken. Then Senator Feinstein and I make a recommendation. It is a bipartisan process.

This is the point: It is working. And it is a participatory process from both parties and both branches of government. I believe questions ought to be asked and answered and Senators have a right to ask questions and Senators have a right to have those questions answered. It is pretty simple.

I started to talk about Judge Paez who made history as a Hispanic because I wanted to make the point for the Senate that he was treated in a way that was totally outrageous, having to wait 4 years to get a vote. He hung on because of his true grit--hearing after hearing; 7 months his nomination languished in 1998. The Republican majority refused to bring him up for a vote. All we were asking for was a vote. And we were refused.

In 1999, Judge Paez was nominated for the third time, and 6 months later the Judiciary Committee approved his nomination, but again we could not get the nomination up for a vote. Finally, when the nomination was brought up after more than 1,500 days, it was filibustered.

My colleagues say again and again it was not. Senator Hatch, the chairman of the Judiciary Committee, said it and it is in the Congressional Record. This was a filibuster. We had to get cloture. When you have to get cloture, there is a filibuster. That is as simple as it is. We had to get 60 votes.

If my Republican friends want to end this, tell the nominee to answer the questions. And believe me, he will get an up-or-down vote and the chips will fall where they fall.

It is very clear to me when I look at the way Judge Paez was treated, Marsha Berzon, Margaret Morrow, and a whole slew of others who were nominated and eventually confirmed, they had to answer question after question after question. I will get to that in a minute, the type of questions that Margaret Morrow had to answer just to become a district court judge.

Let's go to the floor of the Senate and take you back to the year 2000 to this filibuster against Marsha Berzon and against Judge Paez. Let me quote Senator Smith, that is Bob Smith, of New Hampshire, then Senator: "it is no secret that I have been the person who has filibustered these two nominations, Judge Berzon and Judge Paez."

And he goes on to say: "So don't tell me we haven't filibustered judges and that we don't have the right to filibuster judges on the floor of the Senate. Of course we do. That is our constitutional role."

This is a Republican, leading the filibuster, against Clinton nominees for the circuit court. He says: "don't criticize our right to do these things and don't say things didn't happen that did happen."

And he goes on, more Bob Smith, Republican from New Hampshire, one of the leaders of the filibuster, along with Senator Allard, Senator Brownback, Senator Bunning, Senator Craig, Senators DeWine, Enzi, Frist, Graham, Helms, Hutchinson, Inhofe, Murkowski, and Shelby. And Bob Smith said:

Don't come here on the floor and tell me that if I want to block Judge Paez or Judge Berzon, somehow I'm going down some new path. I am not going down any new path. I am following the tradition and precedent of this Senate.

That was Republican Bob Smith, one of the leaders of the filibuster, against two judges, one Hispanic, nominated by President Bill Clinton for the Ninth Circuit Court.

Senator Bob Smith continues:

We have a responsibility to make darn sure these judges are going to represent the views of the majority of the American people in terms of the law. I intend to do that as long as I can stand here to do it.

And the Republican Bob Smith continues, one of the leaders of the filibuster, against Hispanic judge Richard Paez. It took him 4 years to get a vote. Bob Smith, Republican:

When a nominee has some controversy about him or her, if it gets to the floor, there are normally quite a few discussions; i.e., a filibuster.

Now this goes on. I am shocked that my friends on the other side of the aisle didn't read recent history--in the year 2000. Here it goes on. What were the reasons for the filibuster? According to Senator Smith, it was because--what? He didn't get answers to questions. Let me quote former Senator Smith again, leading a filibuster against a Hispanic judge and Marsha Berzon, two qualified appointees. They got the top rating. They were put up by Bill Clinton.

I think those questions ought to be answered. I think we should know the answers to those questions about what happened before we put this person on the circuit court.

Let me say that again. A Republican colleague of yours, that side of the aisle, leading the charge against these Clinton nominees, leading a filibuster:

I think those questions ought to be answered. I think we should know the answers to those questions about what happened before we put this person on the circuit court.

More quotes from Bob Smith, in the Congressional Record:

Filibuster in the Senate has a purpose. It is not simply to delay for the sake of delay. It is to get information.

It is to get information. And do you know what? I disagreed with the filibuster that was led then. It went on and on until they didn't have the votes anymore and we had the votes. You could say: What goes around comes around.

Senators on the other side of the aisle launched a filibuster against two of President Clinton's nominees for the Ninth Circuit Court, with the highest qualifications, and there were those on the other side of the aisle who believed they didn't answer questions. They launched a filibuster on that ground, and we had to get the votes. And you have to get the votes. That is the way it is here.

We were able to get the votes because--guess what--our nominees answered the questions. They answered the questions, every question. I had worked to help get Margaret Morrow to a district court judgeship. I want to tell you, Margaret Morrow waited 2 to 3 years to get a vote for district court. Do you know what she was asked? She was asked a question that was so abhorrent, I could not believe it. She was asked by one of the Senators on the Republican side of the aisle how she voted for the last 10 years on referenda that were on the ballot in California.

Madam President, I know you are not an expert on California. I can tell you, there were hundreds and hundreds of these referenda, and they were on some tough issues for everything you can imagine.

No. 1, I always thought this was a secret ballot. When you go in the voting booth it is between you and yourself; you are going to decide these issues. That is No. 1.

No. 2, this was an impossible request. How could you even remember all these issues, how you voted on them?

So we went to this particular Senator and said: Senator, this is not fair. This is a secret ballot--please. But he wouldn't relent. But he relented to this degree. He said: OK, we won't go back 10 years, just give us the 10 most controversial votes.

She did. She did. She respected the process enough, she even went so far as to answer those questions which, in my opinion--I don't know what I personally would have done. I truly don't know. But I know I told her, if she felt she could do it, do it, because a Senator was asking.

That is an amazing comparison, compared to: Can you name any Supreme Court Justice who would emulate or any Supreme Court case that you disagree with? Those are conventional questions asked over and over again.

As far as memoranda from the Solicitor General's Office are concerned, there is precedent for that. There is precedent for that. I will give you the people who turned over these previously confidential internal documents. I give the names for the record: Robert Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, Judge William Rehnquist. These people turned over previously confidential internal documents. Do you know why? I think they respected the Senate enough to say: Do you know what? I could just argue legalese with you, but you have a very important job of advice and consent, and we are willing to give you these memoranda. So there is precedent for that.

I am stunned. We went through the Record and my staff pointed out the comments that were made on this floor by Senators over and over again, referring to the fact that they were filibustering Judge Paez, they were filibustering Marsha Berzon. And then to hear there hasn't been a filibuster here since the 1960's--I don't know what to say. It is stunning to me.

The fact that we beat it back, that means it is not a filibuster? You get the votes, you beat it back; is it then not going to be a filibuster? I have taken to the floor tonight because I am incredulous on the point. After seeing these words in the Record myself, with my own eyes, after hearing Senator Hatch, who is leading the charge and telling us this is unprecedented, what we are doing, this is unfair to someone, he himself referring to what happened to Richard Paez as a filibuster.

Bob Smith not only referred to it as a filibuster that he was actually leading, but that he was leading in order to get information. You could say we took a page out of the book of the Republicans. We didn't. Because we are willing to say we will vote for cloture when he turns over the information. I never heard, frankly, any of them at that time say they were willing to allow a vote if there were more questions answered because, frankly, every question was answered that you could come up with. There wasn't anything else you could know about those nominees--what they thought, or what they dreamed about, or what they wanted to do, or what they believed, or whom they admired, or what meetings they went to. It was extraordinary.

I think it was Marsha Berzon who was asked the question--she was on the board of an organization. They said to her: We want to know everything that happened at every meeting of that organization, whether you went to the meeting or not.

It took her hours. Why? She respected the role of the Senate to advise and consent. It is in the Constitution, and she understood that, and Miguel Estrada should understand that. I don't care who trained him not to say anything. We have those quotes all over the place. I have seen one saying: Don't answer any of these questions; this is a lifetime opportunity; don't let them see who you are. He was trained not to answer questions.

He ought to respect the Senate. I know the members of the Judiciary Committee on our side of the aisle, and I know the members on the other side. I know they work hard. They have a lot of pressure on them on both sides. When my colleagues tell me they were stunned at the stonewalling they received, I believe them because, by the way, I read some of the answers Miguel Estrada put into the record. I will give you questions and answers here. These are questions asked by Senator

Schumer:

Question:

Other than cases in which you were an advocate, please tell us of three cases from the last 40 years of Supreme Court jurisprudence you are most critical of.

Answer:

I'm not even sure that I could think of three that I would be--that I would have a sort of adverse reaction to, if that's what you are getting at.

Question:

So, with all of your legal background and your immersion in the legal world, you can't think of three, or even one single case that the Supreme Court has decided that you disagree with?

Answer:

I don't know that I'm in a position to say that I disagree with any case that the Supreme Court has ever ruled on or that I think the court got it right.

Question:

I'm not asking how you approach cases. That's a legitimate question and some have asked it. I want to know how you feel about cases. And you have said more broadly than any other witness I have come across--you have given us virtually no opinion on anything because it might come up in the future. Answer:

But the problem is the same, Senator Schumer, because taking case A and looking at whether the court got it right or whether I think they got it right I have only the benefit of the opinions. I haven't seen the litigants.

The litigants have been dead for a long time in Dred Scott. But, for God's sake, we ought to know. You can't say that slavery is wrong; that you disagree with that decision? You can't say separate but equal was wrong because you didn't know the litigants?

Where are we? I am stunned.

He said the case is ruled on but he didn't get to see what made it into the opinion.

This is outrageous. He didn't see what made it into the opinion; the court ruled that slavery was constitutional and he didn't disagree with it? He has to meet the litigants? I am stunned.

The Senate has a very sacred job. It is in the Constitution. It doesn't say roll over and play dead when a President picks a nominee to a court. In fact, the Founders disagreed over who should have the responsibility to choose justices. And they came out with this very balanced decision of equal power. Presidents do not like that. I can tell you. I don't know one President who likes the fact we have this advise and consent role. It is very annoying to the executive branch that we are here. I don't care whether they are Democrats and Republicans.

I say that when our constituents sent us here they want us to do the job we swear to do. We hold up our hand here on the Bible and swear to uphold the Constitution. The Constitution says advise and consent on judicial nominees.

It doesn't say roll over and play dead. It doesn't say, oh, give them a break. It doesn't say that. We have a lot of other things to do. It doesn't say that. It says the Senate shall advise and consent.

At home in California, the way people pick district court nominees, it is true--we advise and consent. I have to say there are a lot of people who do not like it. Some conservative groups in California are saying they do not like the way we are doing it. But it is fair. We are appointing moderate Republican judges to the district bench. That is the way the President said he wanted to do it. We are able to do it because in our State we have an agreement where Democrats and Republicans sit side by side and choose. We have two Democratic Senators. That is why this happens.

But if the President is going to send us judicial nominees who won't answer questions, he is not going to get very far. It isn't going to work. Frankly, from my perspective, if people are off the charts on the right wing, I am not going to vote for them. I will not filibuster them. Once they give us the information, I am ready to vote. I will retain my right for a Supreme Court Justice, however, on that point on the filibuster. But, in general, if people answer questions, I will vote no. But I want the answers. I don't want a judicial selection process that excludes the Senate. It is the worst thing that can happen in this country.

If you look around, it is the courts that have stood up for the rights of our people--free speech, freedom of religion, freedom of the press, civil rights, human rights, environmental rights, so many rights that we hold dear, and the right to choose.

Madam President, you and I have worked hard on that. If we didn't have a court that found in the early stages of a pregnancy a woman has the right to choose, I don't even know where we would be for women. The courts have held the line. We know it is very shaky right now.

The courts play a very important role. It is part of the check and balance in our society. It seems to me, if we think that we don't have enough information and just sit back and say it would be a lot easier to let it go, I will vote no to let it go. I don't think that is right for those who come here.

Bob Smith, a Republican from New Hampshire, said he didn't have enough information. I disagreed with him. We beat him on the filibuster. But there was a filibuster. I think recent history is showing us that there is precedent for asking the important questions.

I wish to say one more thing about the Paez nomination. After we won on the filibuster of both Marsha Berzon and Richard Paez, there was a motion made by a Republican Senator to indefinitely postpone the final vote on one of the two, the Hispanic, Richard Paez. It was stunning. It was unprecedented.

Let me make a statement. I believe it is a precedent that never should be occurring here again because the whole purpose of a filibuster is to determine whether you are going to move ahead on a vote. Once there is no filibuster, you have to have a vote. Then we had this intervening motion about indefinitely postponing the vote. It just undercuts what cloture is supposed to be about. I thought that was unbelievable.

Basically a Senator wanted to kill the nomination even after we had won cloture. That was so unprecedented that Senator Hatch himself said he had never seen it. He had never heard of it, and he was perplexed. He was baffled by it.

Let me quote Senator Sessions who moved to stop the final vote on this Hispanic Judge, Richard Paez, after we won cloture. He said:

I move in a postcloture environment to postpone indefinitely the nomination of Richard Paez--

Listen to this--

in order for this body to get the answers I believe every Senator deserves with regard to the concerns I have raised about Judge Paez over the last several days.

On Judge Paez, because this Senator thought he didn't have the information after 4 years, after pages of questions, after cloture was invoked then he did something unprecedented and moved to indefinitely postpone the final vote.

At that time, Senator Hatch was perplexed. I was certainly perplexed. Colleagues were amazed. And here is in full what Senator Hatch said at that time.

I have served a number of years in the Senate, and I have never seen a "motion to postpone indefinitely" that was brought to delay the consideration of a judicial nomination post-cloture. Indeed, I must confess to being somewhat baffled that, after the filibuster is cut off by cloture, the Senate could still delay a final vote on a nomination.

Senator Hatch was right on the point. He called the filibuster a filibuster at that time. He was baffled by the kind of a postfilibuster-filibuster in the guise of postponing the final vote. Clearly, we had to get the votes for Judge Paez, and we did. And he is serving and doing us all proud, I might say, on the Ninth Circuit right now.

Iraq

Mrs. Boxer: Madam President, I have a couple of things to say about another subject in a brief period. It has to do with the issue of Iraq.

I spent a week during the last break in California and doing several events--many events, doing the normal things you do when you go home; going shopping, taking a walk in the park and around the neighborhood. I don't think I have ever seen my people in California as distressed and on edge and anxious as they are at this particular point in our history.

I want to tell you that this cuts across party lines.

As a matter of fact, there was a poll in the paper today about the views of Californians very much concerned about going to war. My constituents are saying: Senator, is there any way in your mind that the President will not take this country into war? And my answer-- because I am searching for it; the President says he has not made a decision--but to be as honest as I can, I say: Here is what I think on that matter. If the true goal is to disarm Saddam Hussein and Iraq, then there is a chance that this could be resolved short of war. But if the true desire is to replace Saddam Hussein, have a regime change, unless Saddam Hussein agrees to go--which would be a wonderful prospect--I do not see how you get there.

The people in my State are very concerned.

Then they say: Well, Senator, do inspections really work? And I tell them that the facts are out there, that in fact there were more weapons of mass destruction dismantled after the gulf war than there were by our bombs.

I asked for the list of weapons of mass destruction that were in fact destroyed after the Gulf war. I am going to read the list of weapons that were destroyed during the inspections.

In the missile area: 48 operational long-range missiles, 14 conventional missile warheads, 6 operational mobile launchers, 28 operational fixed launchpads, 32 fixed launchpads under construction, 30 missile chemical warheads, other missile support equipment and materiel, supervision of the destruction of a variety of assembled and nonassembled supergun components.

In the chemical area: 38,537 filled and empty chemical munitions were destroyed by the inspectors, 690 tons of chemical weapons agent, more than 3,000 tons of precursor chemicals, 426 pieces of chemical weapons production equipment, 91 pieces of related analytical instruments.

In the biological area: an entire biological weapons production facility called Al-Hakam, a variety of biological weapons production equipment and materiel.

So the fact is, the inspectors discovered and dismantled more weapons of mass destruction than were in fact destroyed by our bombs.

Sadly, there was a period where there were no inspectors in Iraq. And I do not trust, for a minute, that Iraq did not start to rebuild these stocks. The fact is, Saddam Hussein must be disarmed. That is why I supported the Levin resolution that said he must be disarmed--but not for us to go it alone, without the world with us, as the world was with us in the first gulf war.

My constituents are coming up to me and saying: What happened here? Everything feels out of control. Why? The world isn't even with us anymore. We are having fights and sniping with our allies. What happened?

I started to think about that. And I will never forget--none of us will ever forget where we were on 9/11, when we were attacked by al- Qaida. Osama bin Laden, remember his name? He attacked us. He hurt us on our own shores. I will never forget that. And I will never forget, on 9/12, that the whole world was with us.

There is a song called "He Has the Whole World in His Hands." It is a beautiful song. President Bush had the whole world in his hands on 9/ 12. Countries around the world--every one of them; even some that we really do not have such a close relationship with--expressed that they were with us. We had the world in our hands. Yes, we were the leader of the free world before 9/11, but on 9/12 the world was so with us and against terror. And somehow, some way, this has been squandered. This has been squandered. There has been this intensity on Iraq and what I call a designed neglect of the rest of the world.

Even in our own hemisphere, we see what is happening in Colombia, in Venezuela. I met with the Mexican Foreign Minister, I say to my friend from Nevada, who has a good-sized Hispanic population in his State. And the Mexican Foreign Minister told me: We had such high hopes when this administration took office, and we see nothing. We are getting no attention for our issues. We must work with your country. And, actually, he quit his post because there was no communication.

We then see what is happening in North Korea, amazing developments in North Korea. And we cannot seem to get the administration to focus on it at all.

Let me tell you, those of us on the west coast, yes, that is why my constituents are coming up to me in the supermarket and pulling at my sleeve, because the North Koreans have a missile that can reach America. They already have the nuclear weapon. They already have kicked out the inspectors. And what is the answer? When the President put them in the "axis of evil," I asked, from my seat on the Foreign Relations Committee, the State Department: Before the President put North Korea in the "axis of evil," was there a conversation about the ramifications of that? And the answer came back to me, I say to my friend: Well, we did go in and we did see the President--this is the highest levels of the State Department--and we said we agreed that North Korea deserved to be on the "axis of evil."

I said: That was not my question. There are a lot of people who could be termed evil in this world. My question was, did you discuss the ramifications? The answer was: No, we did not.

I asked: Well, did you call up our friends, our allies, with whom we share classified information every day--South Korea, Japan--to talk to them about the ramifications of putting North Korea in the "axis of evil"? Oh, no, came the answer, we do not share State of the Union speeches with other countries.

Well, that was not the point about the State of the Union speech. It is South Korea that looks across the line at North Korea. I have been on that line, that DMZ. By the way, what a failure to humankind that situation is--one people divided. It is just the saddest situation, one of the saddest failures of humanity.

So we had the situation on 9/12/01, where the whole world was with us--the whole world. And after that, that whole situation has been squandered.

I heard Senator Leahy make similar remarks today about this. I think we have to understand where we are today. And we need to understand there are problems all over this globe, and that for us to go it alone--or almost alone--in a war with Iraq will make matters worse, I am afraid. As a leader, you have to win over your friends, and others, through your reasoning, through your evidence, through your power of persuasion, not just buying people off or giving them money.

There has been a lot of talk about what we are going to give Turkey for their cooperation. Look, I understand an ally is an ally, a friend is a friend, and so on; but this thing is still not resolved, and the costs go up. I don't think the American people understand that this is their tax dollars we are talking about--$5 billion in grants, when we are about to kick off the rolls almost 600,000 children from afterschool programs, according to the President's budget, and not fully funding our disabled kids in school, and the cleanup of only 40 Superfund sites instead of the 87 President Clinton did during his tenure.

These things just don't come about in a vacuum. I thought Senator Byrd was so well spoken when he made the point that we don't even know the cost. Remember Larry Lindsey, I say to my friend from Nevada, the President's economic advisor? He put out--I think last summer--a statement saying it is going to cost us between $100 billion and $200 billion for a war in Iraq.

Mr. Reid: If the Senator will yield. Isn't that the man who was fired recently?

Mrs. Boxer: Fired, let go.

It is going to cost between $100 billion and $200 billion. Now they are saying it is $95 billion. They started off saying it was going to be $30 billion, $40 billion, $50 billion, or $60 billion, but that doesn't count what they want to pay to Turkey. When you add in the loan guarantees and the rest, some people are saying that is $26 billion. And we are not reimbursing our States for the work our local police, our firemen, and our emergency workers are doing. We are neglecting port security.

I read today--and this is close to my heart--a little article, which I will send to my colleagues. It is very important. It says that many terrorist groups now have stinger missiles, shoulder-fired missiles. We have seen five, six, seven examples of terrorist groups over the years aiming at commercial aircraft. Admiral Loy's Deputy has said this is worrisome. It is going to cost money to prepare our commercial fleet, to have an antimissile system put on, just as the Israelis reportedly do. The technology is there. Yes, it is going to cost a million dollars per plane, but we are busy giving money out around the world. We are busy giving money out. We don't hear the name Osama bin Laden. One of my colleagues, Senator Dorgan, calls him Osama "been forgotten" because you don't hear anything about him.

Mr. Reid: Will the Senator yield for a question?

Mrs. Boxer: Yes.

Mr. Reid: As a foundation for my question, I want to say I appreciate her statement on the floor. Senator Byrd was here earlier. I told him the same thing I say to the Senator from California. This is a good debate to have. It doesn't matter how you feel about the war. It is important to have a debate.

As I said earlier today on the floor, and I say to the Senator from California, are you aware that the British Parliament had a long, extended debate today on the Iraq conflict?

Mrs. Boxer: My staff mentioned that they had watched it. I did not see it myself.

(Mr. Alexander assumed the Chair.)

Mr. Reid: The senior Senator from Illinois said he watched it for an hour before work today. He said it was a great debate. They discussed the issues relating to the conflict that will probably occur in Iraq. I say to my friend from California, it is good that you are speaking to alert the American people to some of the problems that may occur with this conflict. It is too bad that the Republicans, the majority, are holding up other legislation and other debate because of one fully employed man, Miguel Estrada, who has a job, as we all know, making hundreds of thousands of dollars a year. It has been laid out on this floor today that the Bush administration lost 2.8 million jobs. Millions are unemployed. But we are hung up on this debate because Republicans won't move off of it.

My question to the Senator is, would it not be good if we had a full day's debate set aside so Senators can offer their views about what is going on in Iraq?

Mrs. Boxer: I say to my friend, if we are to be relevant--this is the word the President talks about when referring to the U.N.--that is what we ought to be doing because, when I went home, people wanted to talk about this because they are nervous about it. Frankly, they don't want us to go it alone. At least the vast majority of people in my State feel that way. They are asking me what it is going to cost. I say I have my own guess, but we really have no idea. A man got fired because he said it would cost between $100 billion and $200 billion. Now they are saying $95 billion. And now they are offering Turkey $26 billion. One general said they will need to stay there with 200,000 troops for years. Another general said that was wrong. We cannot get an answer to that.

We don't know if Saddam Hussein will use these weapons of mass destruction, or what he will do with the oil fields if we go in there. My own view on this is that the American people are very concerned. I agree with my friend. We are spending a whole lot of time on the nomination of one judicial nominee who, frankly, in my view, cannot really want the job that much because he won't answer the questions. He will not answer the questions. If he answers the questions, we would say immediately, vote cloture, then give him a vote, and that is the end of it.

Mr. Reid: Will the Senator yield for another question?

Mrs. Boxer: Of course.

Mr. Reid: The Senator served in Congress, as I did, when the previous war occurred in Iraq, which was more than a decade ago. Does the Senator recall--and these numbers may not be exactly accurate, but they are close--that the first President Bush reached out and, prior to the conflict beginning, there were commitments from various countries to give billions and billions of dollars to help fight the war in Iraq-- billions of dollars? And is the Senator also aware that in addition to giving billions of dollars to help with the conflict, other countries were supplying tens of thousands of troops and airplanes?

Now, I have pretty reliable sources that say the only country really supplying troops is Great Britain. All of the other countries are saying they support the war, but most of those are in the category of Turkey. They are supporting the war if, in fact, they get certain economic benefits. So, in short, is the Senator aware that in the previous conflict there were large sums of money that would be given to help the U.S. fight that war, and large numbers of troops that were being sent to the front lines to help the United States troops fight that war? Is the Senator aware that, in fact, basically other than Great Britain, this is our war and nobody is helping?

Mrs. Boxer: My friend, the Democratic whip, is absolutely correct. Our records show that the first gulf war cost $61 billion. Remember that we stopped well short of Baghdad, when you are thinking what this war will cost. That is a long time ago and there has been inflation. It was $61 billion then, and $54 billion was paid for by our friends around the world. That is more than 80 percent, when you figure it all out.

I further say to my friend that we had many countries sending troops, over 20. In this case, the administration is telling us we need 250,000 troops for this war, and Britain is sending in 26,000 troops. That is about right, 26,000 troops and 250,000. That is pretty much in terms of combat troops. That's it.

Mr. Reid: Will the Senator yield for a question?

Mrs. Boxer: Yes.

Mr. Reid: The reports I received today is the United States alone has in the gulf area 210,000 troops, plus Great Britain--I do not know how many they have there, but, in fact, if they need 240,000 troops, is what I am told, the United States is doing it all with the help of Great Britain. There are other countries saying they support us. Those countries, I repeat to the Senator, and I think she will agree, want some economic benefit to even say they support us, even though they are not sending any troops.

Mrs. Boxer: It is an unprecedented handout type of situation, which is offensive to me in many ways. This is a go-it-alone situation where it stands today.

I will finish where I started this conversation about Iraq. We had everyone with us after 9/11--the whole world. We lost that. People around the world are looking at us, and many are saying this was something the President had decided and he just went to the United Nations because he was kind of pushed there--and as one of the people who pushed him there, I am glad he went there. Believe me, I give credit where credit is due. I give credit to Colin Powell. But going there and winking and nodding and saying, I am going to go to the U.N.--but really I know what I want to do--I will give a particular case in point.

Whenever there is a little progress in finding some of these weapons, the President says things such as: Oh, that is the tip of the iceberg, and he may be right. But wouldn't it be better to say something such as: This is the tip of the iceberg, Saddam Hussein, and I am asking you to give us the rest of the iceberg, to do it now to avoid war, to avoid bloodshed. The world is watching.

We do not seem to hear those words. What we really hear is: Inspections mean nothing. Maybe it means nothing, and if it means nothing, then the U.N. eventually is going to call this guy on it. They are going to call him on it, just like they did before. By the way, these weapons are a threat to the world, and a lot of the world is a lot closer to him than we are, and a lot of the world could potentially be reached by his missiles.

The question for me, as one Senator, has never been should Saddam be disarmed--absolutely he should. Back in August when the President was saying we are going to go to war, I said: Wait a minute, the issue is weapons of mass destruction; let's see if we can get intrusive inspections back in there and pick up where we left off with the inspections which destroyed--and I read the list into the Record already--more weapons of mass destruction than we did with our bombs. If this is really about that, then we know the proven way to do it. And if Saddam ever so much as kicks the inspectors out, does not cooperate with them, thwarts them, we will know it, and we will be on the moral high ground. We will have the whole world back in our hands, and we can move forward with the world community, just as my friend pointed out happened in 1990.

I thank The Presiding officer:

I will be glad to yield to the Senator from Nevada for another question.

Mr