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The Presiding officer: The Senator from Utah.

Mr. Hatch: I ask unanimous consent that the distinguished Senator from Ohio speak next for 15 minutes, the distinguished Senator from Oklahoma speak after that for 5 minutes, and then I be yielded the floor.

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

The Senator from Ohio.

Mr.Voinovich: Mr. President, I rise today to speak on behalf of the nomination of Miguel Estrada to the DC Circuit Court of Appeals. I had intended to finish my remarks this evening by reading an editorial from the Washington Post. I have listened patiently to the distinguished Senator from Vermont, and I would like very much to quote from the Post editorial because it is looked upon as one of the most objective papers in the United States of America. Some of my colleagues think it has a liberal tilt to its editorial policies. This is a February 18th editorial from the Washington Post:

We all know of Mr. Estrada's illustrious background. I will not rehash his stellar credentials. We have already heard many of our colleagues come to the floor and tell what I refer to as the "only in America" story about Estrada's unprecedented rise from his home in Honduras to his current position as a partner with one of Washington's distinguished law firms.

My colleagues on the other side of the aisle have leveled many complaints against Mr. Estrada, including that he has not had enough judicial experience. I note the following: 26 circuit judges had no judicial experience when they were nominated by President Clinton; they were all confirmed. Of the 108 individuals who have served on the Supreme Court, 43 had no judicial experience at all. In fact, in the entire history of the Supreme Court of the United States, 8 of the 16 chief justices in America's history had no prior judicial experience. Of those justices appointed in the last 50 years, Justices William Rehnquist, Lewis Powell, Jr., Abe Fortas, Arthur Goldberg, and Byron White had no prior judicial experience when appointed to the Supreme Court.

On the circuit court to which Mr. Estrada has been nominated, five of the eight judges had no previous judicial experience before taking the bench, including two Clinton nominees and one Carter nominee.

On the other hand, Miguel Estrada has a combined level of appellate and trial experience that far exceeds that of the average court of appeals nominee. Mr. Estrada's experience even exceeds that of many Supreme Court nominees. He has argued 15 cases before the U.S. Supreme Court, both criminal and civil. He has tried 10 cases as a prosecutor, argued 7 cases before the U.S. court of appeals for the second district, as assistant U.S. attorney for the southern district of New York.

I emphasize to my colleagues the American Bar Association has rated Estrada well qualified, a rating that my colleagues on the other side of the aisle have called the gold standard. I heard before: Your nominees, Mr. President, are going to have to reach the gold standard of the American Bar Association. Judge Estrada has met the gold standard of the American Bar Association.

My colleagues have also launched criticism at Mr. Estrada for not turning over documents--I heard that this evening several times--that he worked on while he was employed by the Office of the Solicitor General. What they do not mention is that these documents are confidential. These confidential memos were not requested of the seven previous nominees to the court of appeals who had worked in the Solicitor General's Office.

In addition, and I think this is very important, every living Solicitor General, both Democrat and Republican, signed a joint letter to former Judiciary Committee chairman, Senator Leahy, stating that fulfilling this request would have a debilitating effect on the ability of the Department of Justice to represent the United States before the Supreme Court.

Mr.Voinovich: This is a very bad time to delay the appointment of judicial nominees. Our Federal courts are in crisis. The U.S. courts of appeals are currently 15 percent vacant, even as case filings in those courts reached an all-time high in 2002. Chief Justice Rehnquist has warned that this high vacancy level, coupled with the rising caseload, threatens the proper functioning of the Federal courts.

Currently, there are 14 courts of appeals pending nominees, 12 of whom were nominated in 2001 and have been waiting for over a year for a vote in the Senate. The most egregious example is the Sixth Circuit, which includes Ohio, where 6 of the 16 seats are open and classified as judicial emergencies. Of these six vacancies, two, Jeff Sutton and Deborah Cook, have been pending since May 2001, nearly 2 years, and three others have been pending since November 2001, over 2 years. The fact is, we do have a crisis in the judiciary in the United States of America.

Now, let's look at the record. When Senator Hatch was chairman during the Clinton administration, he considered more than one circuit nominee at 11 different hearings. But not once during the 107th Congress did the Democrats hold a hearing on more than one circuit court nominee at a time. The result is we fell behind in the confirmation of circuit nominees.

Presidents Clinton, Reagan and the former President Bush all received confirmations for their first 11 circuit nominees well within 1 year of the nominations. This is in stark contrast with the treatment afforded to President George W. Bush. Only 3 of his first 11 circuit nominees were confirmed within 1 year of their nomination. And only 5--fewer than half--were confirmed during the entire 107th Congress. That's terrible.

My friend Senator Hatch is an extraordinary man. After so much repetition of the same arguments, I'm amazed that he can even stand up.

As Senator Hatch has highlighted in the past, during Democrat control of the Senate in 2001-2002, only 17 Bush circuit court nominees reached the floor for votes. In three of the cases in which they did go to the floor--the nominations of Julia Smith Gibbons, Richard B. Clifton, and Lavenski R. Smith--cloture motions were filed and the motions easily carried.

However, and this is very important, none of those cloture votes was in response to a genuine effort to filibuster a nominee. Rather, cloture petitions were filed as a Senate time-management device.

If the Estrada nomination is permanently blocked by a filibuster, the political baseline shifts forever.

To understand just how extraordinary the current situation is, one only needs to examine the Senate's record of judicial confirmations. The first filibuster of a judicial nominee that resulted in a cloture vote was in 1968. Since then, the Senate has confirmed approximately 1,600 judicial nominations--the vast majority of these, nearly 1,500, occurred without even a roll call vote, as most are confirmed by unanimous consent.

Indeed, of those 1,600 judicial nominations confirmed by the Senate since 1968, only 14 were subject to a cloture vote. And with the exception of the bipartisan 1968 filibuster of Abe Fortas' nomination to be Chief Justice of the United States, the Senate has never blocked by filibuster a judicial nominee to any court--Never.

The rejection of Abe Fortas to serve as Chief Justice of the United States marked the first and only time the Senate has rejected a President's judicial nominee by way of a filibuster. Yet Miguel Estrada presents none of the concerns that caused a bipartisan coalition of Senators to block Justice Fortas' elevation to chief justice.

Given the Senate's historical unwillingness to filibuster nominees-- even Supreme Court nominees--it is not surprising that the Senate has never blocked by filibuster a nominee to any lower court. Furthermore, the Senate has never blocked--by a partisan filibuster--any judicial nominee. As I noted, the only rejection-by-filibuster was the case of Justice Fortas, which was bipartisan. There is no precedent in the Senate of a filibuster conducted solely by one Party to deny the President his judicial nominee.

The stakes here are much greater than the fate of a single judicial nominee. At issue is whether the Senate should reinterpret its constitutional advise and consent obligation to require 60 rather than 51 votes to confirm a judicial nominee. This is a position the Senate has never taken in the context of lower court nominees, and one which Republicans have avoided.

To adopt a new standard would fundamentally alter the balance of power between the administration and the Senate in the judicial confirmation process. It also would seriously erode the comity that has existed between the two branches in the past.

In effect, we're playing games with the administration of justice, acting without regard for the problems of the Judiciary. If Senators filibuster Mr. Estrada's nomination to the DC Circuit, and if that filibuster results in the rejection of the nomination, Democrats will have forced a permanent change to the political and constitutional landscape. This in essence, would create a completely new process and would, in effect, allow Senators to deny any judicial nominee their right to a vote.

Due to the numerous delays in the Estrada vote, the crisis in the Federal courts continues and the Senate can't attend to our pressing legislative business. Our country has serious problems today and they require serious and thoughtful consideration in the Senate. The stalling games that are being played here are really hurting the judicial process and to a larger and greater extent the Nation itself.

While we wait for the minority to make up its mind, we cannot accomplish any meaningful debate on the country's pressing problems. These are hard times for Americans and my constituents ask me: Do you guys in Washington get it? Do you get it? Do you understand what is going on?

We are involved in a war on terrorism abroad and at home. The economy is sputtering. The President of the United States has more on his plate than perhaps any President in my memory. Some say he has more on his plate than FDR, some say Abraham Lincoln. Our constituents believe we are behaving like Nero, fiddling around while Rome was burning. They continue to ask, don't you get it? Is the Emperor wearing any clothes?

All of us in this body have priority concerns, yet during this stalemate, no one's legislation is moving ahead. Consideration of urgent matters that I would like to be addressed, such as prescription drugs/Medicare reform, medical lawsuit abuse reform, asbestos litigation reform, human capital, the energy bill at a time when the cost of natural gas is skyrocketing, or the accelerating deficit.

I know I am not the only Senator who is concerned about these issues and I know some of my colleagues have other priority concerns. At present, no one is winning anything by this stalemate and the important concerns of the American people are being held hostage.

This is bigger than a delayed vote on Miguel Estrada. As U.S. Senators we need to act like adults. We need to come together and create a unanimous consent agreement on how we will handle the approval of judges from now on. We have to find a way to reach agreement.

If my colleagues on the other side of the aisle persist in opposing Mr. Estrada, they will have a hard time explaining to their constituents why they voted against him since he has met, and I dare say surpassed, the "gold standard" they asked for by the American Bar Association. They also would be hard-pressed to explain why his nomination has been held up for so long without a vote.

I've been receiving letters from my constituents who think the U.S. Senate is holding up this vote because Mr. Estrada is Hispanic. My Hispanic constituents think he is being used as the whipping boy and they are furious. I don't think some of my colleagues realize what this means to a minority community. In Ohio, I appointed Jose Feliciano as the first Hispanic police commissioner because he was the best candidate, but the Hispanic community was very proud and excited. The Hispanic community was so proud that one of their boys made it. Can you think of what an impact it had on the young people that a Hispanic made it to be the police commissioner.

I remember when I appointed Ken Blackwell to be the treasurer of the State of Ohio, the first African American to serve as the treasurer of the State of Ohio, a constitutional office, and how much it meant to African Americans in our State that someone could hold a constitutional office. They had an inspiration. I came up during the years of Carl Stokes, the first African American mayor of the city of Cleveland, and I remember the impact it had on young people in Cleveland and all over America that an African American could be a mayor of a major city. I remember Frank Lousche, who was the mayor and Governor of the State of Ohio, and Senator, who was a Slovenian--when I was 12 years old, how much it meant to me to see Frank Lousche, Slovenian, get to be mayor, and then Governor. By that time he wasn't even a Senator. But it inspired me and other people of my nationality to say if he can do it, I can do it.

There is more to it here. In this case I think my colleagues should understand, particularly my colleagues on the other side of the aisle, this is a good man. He has the qualifications. There is not any reason why we should not allow a vote on this particularly wonderful human being who will make a difference if he has a chance to serve on the bench here in the DC District.

In addition to that, it will mean so much to Hispanics all over the United States that one of our boys made it.

The Presiding officer: Under the previous order, the Senator from Oklahoma has 5 minutes.

Mr. Inhofe: Mr. President, I can relate to the remarks of the Senator from Ohio. He and I had the honor of sharing the same position of mayor of a major city. It happens I started--maybe you did--the first Hispanic commissioner in the city of Tulsa. We had a sister city in Mexico, Ciudad de San Luis Potosi. They would come up there once a year for this big exchange program. I can remember standing there in front of all of our citizens, our Hispanic citizens of Tulsa, saying: Como Acalde de la ciudad de Tulsa, yo quiero decir Bien venidos, bien venidos a la ciudad. Creemos la Ciudad de San Luis Potosi es la ciudad mas hermosa de todas las ciudades del mundo.

Their faces shined and they realized we were participating in their culture and they in ours. They asked me the question last week, and I asked the distinguished Senator from Utah, What do we say to them when we go back and talk to them? Why won't they give us a chance, give one Hispanic a chance at a high office?

They asked me that question and I did not have a very good answer for them. But they said, You know, there are a lot of us out here who really do care. They said, Why don't you kind of visit with us a little bit.

Muchos Hispanos estan eschuchando ahora. . . Y Yo Quiero Decir.

Por desgracia, hay personas en el senado que no quieren escuchar a ni una palabra de la verdad.

Yo invito a la comunidad hispana para llamar a sus senadores para insistir en los derechos de Miguel Estrada y en la confirmacion de Miguel Estrada como juez.

Llame los senadores, todos los senadores, especialmente los senadores, de los estados de CA, FL, NY, LA, AR y NM. Llame ahora y preguntalos, Porque no les gusta hispanos? Es su mision. Llame ahora! Los Estados Unidos necesitan un hispano . . . y eso hispano es Miguel Estrada.

Vaya, vaya a llamar imediamente. Los hispanos quien estan escuchando ahora pueden hacer la diferencia.

Gracias Mis Amigos.

I yield the floor.

The Presiding Officer (Mr. Warner) Under the previous order, the Senator from Utah has the floor.

Mr. Hatch: Mr. President, I have been here 27 years. I have been on the Judiciary Committee 27 years. I have literally seen 1,500, 1,600 judges confirmed--most all of them without even a debate, just by unanimous consent. I have seen very few judges given a rough time and hardly anybody given the rough time that Miguel Estrada is being given here on the floor. I have never seen anybody in the history of the Senate--in all of my studies of the history the Senate--filibuster a circuit court of appeals nominee--never, not once. I have never seen even where there have been cloture votes for management purposes or whatever else--certainly not a filibuster purpose--I have never seen a circuit court of appeals nominee pulled down because of a filibuster-- never.

Why this double standard? Why is Miguel Estrada, with all his credentials--and on the other side of the aisle they admit he has exceptional credentials, including their gold standard, the American Bar Association's most well qualified standard, the highest rating anybody can possibly have--why is it that this double standard is being used against this Hispanic nominee to one of the most important courts in the country, this Hispanic nominee who is by all intents and purposes and by all measure the embodiment of the American dream?

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

Mr. Hatch: I would be delighted to without losing my right to the floor.

Mr. Frist: Is the Senator from Utah aware of any argument against the confirmation of Mr. Estrada that he does not have the academic credentials to suggest that he will be a fine judge?

Mr. Hatch: Of course not. They could not. Mr. Estrada graduated magna cum laude from Columbia University after coming from Honduras. He was 4 years old when his parents divorced in Honduras. He was 17 when he came to this country, speaking very little English. He taught himself English. He graduated magna cum laude from Columbia University, and then he graduated magna cum laude from Harvard where he was an editor of the Law Review--one of the highest positions you could have in the law school. Of course not. There is no way they can say he doesn't have the academic credentials to do this job.

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

Mr. Hatch: Yes, without losing my right to the floor.

Mr. Frist: Mr. President, the Senator from Utah has been reviewing the records of judicial nominees for 27 years. Does the Senator know of many lawyers who have argued 15 cases before the Supreme Court, as has Mr. Estrada?

Mr. Hatch: Of course not. Few lawyers have. Few nominees for judgeships have in the history of this country. That is what makes me so livid--to see lesser legal minds writing partisan letters suggesting he is not a qualified nominee. It drives me nuts, to be honest with you. Few lawyers in America have argued 1 case before the Supreme Court, let alone 15.

By the way, Miguel Estrada has a handicap. He has a disability. He has a speech impediment. Yet he has risen to the top of the legal profession in appellate advocacy and oral advocacy with a speech impediment. Nobody can match that.

Mr. Frist: Mr. President, will the chairman of the Judiciary Committee yield for a question?

Mr. Hatch: Yes, without losing my right to the floor.

Mr. Frist: We know in fact that the American Bar Association has given Mr. Estrada its highest rating--in fact, unanimously well qualified. Does the Senator know if the Senate has ever obstructed a vote on any nominee recommended to the Senate by the Judiciary Committee who has received an ABA rating of unanimously well qualified?

Mr. Hatch: I do not recall anyone who has had this difficulty--in fact, anyone with that type of a rating who has not gone through the Senate once reported by the Judiciary Committee, and the fact that the Democrats are doing this now is outrageous.

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

Mr. Hatch: Yes, without losing my right to the floor.

Mr. Frist: Will the Senator agree that the opposition mounted against Mr. Estrada is not about his qualifications?

Mr. Hatch: No. How could it be?

Mr. Frist: If the Senator will yield for a question----

Mr. Hatch: Without losing my right to the floor.

Mr. Frist: Is the Senator aware that it has been suggested a double standard is being applied to this nominee with requests being made that have never been applied to any other nominee? Does the Senator have any explanation for this?

Mr. Hatch: I agree with the distinguished majority leader that there is a double standard being applied to Miguel Estrada. I don't want to particularly conjecture at this point as to the motive. But a double standard is generally being applied, and it is not fair.

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

Mr. Hatch: Without losing my right to the floor.

Mr. Frist: The chairman of the Judiciary Committee is a constitutional law scholar and knows the rules and the practices of the Senate. My question is, Has he ever seen a filibuster used against an appellate court nominee?

Mr. Hatch: Not a true filibuster. There have been cloture votes as a Senate management device but not a true filibuster. There has never been a true filibuster used against a circuit court of appeals nominee, no, and certainly not against a circuit court of appeals nominee to the Circuit Court of Appeals for the District of Columbia.

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

Mr. Hatch: Yes, without losing my right to the floor.

Mr. Frist: Does the Senator from Utah share my concern that what they are doing in filibustering Miguel Estrada is harmful to the institution of the Senate and its advise and consent responsibilities?

Mr. Hatch: I have never been more concerned. We are in danger of actually breaking the system. We are in danger of doing lasting harm to the Senate, its procedures, and to the President of the United States, and to the judiciary; to the executive branch because, if this filibuster goes through, that means that on controversial nominees--and my colleagues on the other side treated all of the Bush circuit court nominees as controversial--that means you have to have 60 votes. That would apply to both sides of the floor should they get the Presidency. It is a very dangerous thing and something we just definitely should not allow to come to fruition.

Mr. Frist: Will the Senator yield for one last question?

Mr. Hatch: Without losing my right to the floor.

Mr. Frist: Mr. President, the Washington Post has repeatedly and emphatically called on the Democratic leadership to stop these demands for confidential memoranda. I was wondering if the Senator had seen the Washington Post editorial from last September that said, "Seeking Mr. Estrada's work product as a government lawyer is beyond any reasonable inquiry into what sort of judge he would be. Nor is it fair to reject someone as a judge because that person's decision to practice law rather than write articles or engage in politics makes his views more opaque."

Does the Senator agree that these demands go beyond any reasonable inquiry and are instead a gimmick and an attempt to prevent this nominee from ever getting a vote?

Mr. Hatch: Absolutely. The tactic is to demand documents that they know the administration cannot give because the precedent would be so earthshaking because these are privileged documents, and then filibustering and claiming they are filibustering because they can't get the documents. And when they don't get them--it is just typical of what they have been doing--they flaunt what really is proper procedure.

Then they have not only asked for documents but his record, Miguel Estrada's recommendations while at the Solicitor General's Office for appeals, certiorari matters, and amicus curiae matters.

Never in the history of this country has anyone given those documents out of the executive branch to the Senate or to anybody else. And they should not, because it would deter and affect and, in many respects, destroy the work of the Solicitor General, the attorney for the people of this country.

Mr. DeWine: Mr. President, will the Senator from Utah yield for a question?

Mr. Hatch: Yes, without losing my right to the floor.

Mr. DeWine: It is my understanding there is substantial opportunity, following hearings, to submit followup questions in writing. I wonder if the Senator from Utah would tell me whether that is correct or not.

Mr. Hatch: Absolutely. Not only did they hold one of the longest hearings in history for a circuit court appeals nominee--conducted by them, which they said was fair, where they had the privilege of asking every question they wanted or even extending the hearings if they did not believe they got answers to those questions--but afterwards they had a right to submit written questions.

And, by the way, only two people did, the distinguished Senator from Illinois and the distinguished Senator from Massachusetts, Mr. Durbin and Mr. Kennedy.

By the way, I do not believe Senator Durbin was even there during the hearings to ask questions. And yet I have seen, time after time, the distinguished Senator from Illinois take the floor and talk about the nonanswers that were supposedly given.

I refer all of my colleagues to the speech made earlier by the distinguished Senator from Tennessee Senator Alexander. He blew that contention that Miguel Estrada did not answer these questions into oblivion. I recommend everybody in this country read that speech because he actually showed the A-plus answers that Miguel Estrada gave to Democrat and Republican questions. And they were thorough. They were answers that would make anybody proud. They were answers that any judicial nominee would be proud to do. And, frankly, he answered them better than almost any judicial nominees I have seen in the last 27 years.

Mr. DeWine: Mr. President, will the Senator from Utah yield for an additional question?

Mr. Hatch: Yes, without losing my right to the floor.

Mr. DeWine: So would the Senator from Utah agree, if a Senator thought that he or she did not have enough information at the hearing about Mr. Estrada, or had additional questions that he or she wanted to have answered, they could have submitted additional questions?

Mr. Hatch: No question about it. They were given the right to submit additional written questions, and only two Senators did.

By the way, the administration has even gone further than that. They said: Look, we will present Miguel Estrada to any Democrat Senator who wants to ask him questions in their personal office on a personal basis. They have gone to great lengths for this wonderful nominee.

Why is it--I ask my distinguished friend and all others who are listening--that this Hispanic nominee is being given the business like he is? Why is it that we have this double standard? It is one of the most difficult things for me to see. It is one of the most difficult things to understand.

Mr. DeWine: Mr. President, I say to my distinguished colleague from Utah, I wonder if you would yield for an additional question.

Mr. Hatch: Without losing my right to the floor.

Mr. DeWine: I want to make sure I understand. I ask my colleague whether or not Mr. Estrada did, in fact, answer the questions?

Mr. Hatch: He answered the questions. Now, he may not have answered them the way some of my colleagues wanted him to. It was apparent they were trying to get him ensnarled. It reminds me of the Biblical days when the pharisees would try to ensnarl Jesus Christ. They would ask these questions, trying to ensnarl Him and make Him look ridiculous in front of the people.

It was almost that bad in committee. He answered every question. Unfortunately, for them, he answered them precisely the way most Democrat nominees did; and that is, instead of going into how he would rule on matters that would come before him later in the court, he basically said: I will obey the law. I will sustain the law. I will follow the law regardless of my own personal views.

That is what the Democrat nominees have said. And that is a correct answer. And it is a very good answer. His answers were more literate, more scholarly, more persuasive, in many of the questions that were asked than I have seen in most nominees.

Again, I ask, why the double standard in this case? Why don't we recognize how great this young man is and allow him the same privileges that we have given to countless Democrats during the Clinton years when we confirmed 377 Clinton nominees to the Federal court--the second all- time highest confirmation rate in history, only 5 below the highest, and that was Ronald Reagan, who had 382?

Mr. DeWine: Mr. President, will my distinguished colleague from Utah yield for an additional question?

Mr. Hatch: Without losing my right to the floor.

Mr. DeWine: It is my understanding that the ABA conducted its own very thorough investigation of Mr. Estrada before they decided to give him their highest possible rating, well qualified.

Could the Senator from Utah tell me whether or not that is correct?

Mr. Hatch: That is correct.

Mr. DeWine: Mr. President, I wonder if my colleague will yield for an additional question.

Mr. Hatch: Without losing my right to the floor.

Mr. DeWine: Now, the ABA has expressly stated it does not evaluate a nominee's ideology because it "restricts its evaluation to issues bearing on professional qualifications." But the ABA does investigate a nominee's openmindedness and freedom from bias.

Could the Senator from Utah tell me whether it seems unreasonable to believe that the ABA would have unanimously given Mr. Estrada its highest rating if it thought he would use his judicial role to advance his personal ideology?

Mr. Hatch: There is no way they would have, no way in this world. In fact, there are plenty of Democrats, and I might add, partisan Democrats, who do not act in a partisan way--and neither do the Republicans--on that standing committee. In fact, if I recall it correctly, there are more Democrats on the committee than Republicans. And they all unanimously gave Miguel Estrada the highest rating that the American Bar Association can possibly give.

Keep in mind, my colleagues on the other side of the floor said that the American Bar Association rating is the gold standard, it is the thing that makes the difference as to why they will vote for people. And "qualified" is normally enough to vote for anybody. Here is a man who has been rated unanimously "well qualified" by both Democrats and Republicans on the standing committee, who I think are doing a good job on that committee.

I have been critical of the committee in the past, but I think during the last few years of the Clinton administration, and up to today, that they have been doing a good job.

Mr. DeWine: Mr. President, I wonder if my distinguished colleague will yield for an additional question.

Mr. Hatch: Without losing my right to the floor.

Mr. DeWine: Can the Senator from Utah tell me whether I am correct in understanding that, despite the assurances of those who have worked with Mr. Estrada, and the unanimous affirmation of the ABA, some of our colleagues continue to be unconvinced that Mr. Estrada would be an unbiased interpreter of the law?

Mr. Hatch: I do not see how any colleague could remain unconvinced of that. He will be. He will follow the law. He has said he will follow the law. He said he would uphold precedent. He said he would do what is right regardless of his own personal beliefs.

That is all you can ask of any of these nominees. And he has answered those questions absolutely accurately, the way the Clinton nominees answered those questions.

Why--again, might I ask--is there a double standard with regard to this Hispanic nominee? Why is there? I cannot see any reason for it.

Mr. DeWine: Mr. President, I wonder if my colleague will yield for one additional question.

Mr. Hatch: Without losing my right to the floor.

Mr. DeWine: I have really tried to understand where some of our colleagues are coming from with their adamant opposition to this extraordinarily well-qualified nominee. The most common criticism has been that there is some concern about whether they know what his personal views are.

I wonder if the Senator from Utah could address that and perhaps remind us again of what Mr. Estrada's supervisors at the U.S. Solicitor General's Office have said about Mr. Estrada's ability to separate his personal views from his analysis of the law.

Mr. Hatch: Well, he worked for both the Clinton administration and a Republican administration. And he got the highest raves and performance evaluations by both administrations, meaning that he worked in a bipartisan way with both administrations. Unfortunately, in order to create a red herring issue that they can hide behind, our colleagues on the other side have demanded his recommendations while at the Solicitor General's Office--the attorney for the U.S.A., for us citizens, the private, privileged memoranda, his recommendations on appeals on matters involving certiorari and on matters involving amicus curiae. There has never been such a move. To my knowledge, the Justice Department, the Solicitor General's Office has never--nor will it ever--give up those documents because they are privileged executive branch documents.

I cannot help but believe our colleagues on the other side know as much about that as I do. They know that is absolutely accurate, and I am just suggesting this is a red herring issue so that they can hold up this nominee with a filibuster, of all things--the first in history.

Let me just go further on that because it is a very important issue, the only issue they seem to have. I hate to say it, but some of our friends in the media ignore the fact that the seven living former Solicitors General wrote a letter to Chairman Leahy that says this:

We write to express our concerns about your present request that the Department of Justice turn over appeal recommendations, certiorari recommendations, and amicus recommendations that Miguel Estrada worked on while in the Office of the Solicitor General.

As former heads of the Office of--

By the way, of these seven former Solicitors General--the only living ones--four of them, or better than 50 percent, are Democrats. Three he worked for. They said:

As former heads of the Office of the Solicitor General under Presidents of both parties, we can attest to the vital importance of candor and confidentiality of the Solicitor's decisionmaking process.

I will read a couple other thoughts here:

It goes without saying that when we made these and other critical decisions, we relied on frank, honest, and thorough advice from our staff attorneys, like Mr. Estrada. Our decisionmaking process required the unbridled, open exchange of ideas, an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure.

High-level decisionmaking requires candor, and candor, in turn, requires confidentiality.

Remember, four of these seven are Democrats. The other three are Republicans. All of them are together in this, though.

Any attempt to intrude into the office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States litigation interest, a cost that also would be borne by Congress itself. Although we proudly respect the Senate's duty to evaluate Mr. Estrada's fitness for the Federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process.

This is signed by Seth B. Waxman, on behalf of himself, Walter Dellinger, Drew Days--three Democrats--Kenneth Starr, Charles Fried, and Robert H. Bork, all Republicans, and Archibald Cox, of course, a Democrat--four Democrats and three Republicans. That speaks for itself. I hope it puts to bed this phony red herring argument that has been lodged by the other side. It is phony, wrong, and should not be given the time of day. I call on the media to start being responsible with regard to these matters.

Mr. Craig: Mr. President, will the chairman of the Judiciary Committee yield for a question?

Mr. Hatch: I will, without losing my right to the floor.

Mr. Craig: Mr. President, the Chicago Tribune has strongly condemned the filibuster the chairman is speaking to tonight. So has the Chicago Sun-Times. Those papers don't agree on a lot of things, but one thing they are now agreeing on is that a filibuster is a bad idea. The Tribune said, regarding this confidential memo request that you have just referred to:

Anyone who wants a glimpse into Estrada's thinking can scrutinize the briefs he wrote and the oral arguments he made.

The Sun-Times wrote:

Our legal system cannot and must not be held hostage to political nitpicking.

It agrees with President Bush that this would be a shameful event.

Now, I know the Senator from Illinois is not in the Chamber now, but as you referenced him a moment ago, he has been in the Chamber quite often demanding these briefs be turned over. You are the chairman of the committee. At the time you were the ranking member and were there-- I was not, as I am a new member of the Judiciary Committee. I was not there during the core investigation and questioning of Miguel Estrada. Can you tell me if the Senator from Illinois was there and if he asked any questions at the time? He seems not to know about this man.

Mr. Hatch: My recollection is that he was not at the hearing and he didn't ask any questions. He and every Democrat had a right to do it, and it went all day long. Yet the Senator seems to be trying to give the impression that he knows everything that went on at the hearings. True, he could have read the transcript, but he had every chance to ask questions. Why wasn't he there? Why didn't he ask the questions? Why is he in the Chamber criticizing Miguel Estrada and criticizing the process and using this phony excuse with regard to the confidential, privileged memoranda of the Justice Department along with his colleagues?

I don't blame any one person. They are all to blame for using these kinds of phony arguments. I think the media is to blame--some of them. I have 57 different editorials, 50 of which are for Mr. Estrada.

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

Mr. Hatch: Not just yet. You mentioned the Chicago Sun-Times. My staff just gave me that. You know, it is interesting--I will quote a couple lines.

Who can look at the spectacle of the 108th Congress and not believe that justice and the basic operation of the Nation is being sacrificed on the altar of ugly obstructionist, partisan politics?

That is the Chicago Sun-Times, which is not known as a conservative newspaper, to my knowledge.

Let me give one other. I am quoting a couple sentences. I will put the whole editorial into the Record, if I can. I ask unanimous consent that this be printed in the Record.

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

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Hatch: "Our legal system could not and cannot be held hostage to the political nitpicking"--which is exactly what is going on here. I admit that my distinguished colleague from Illinois did take the time to submit questions. None of the others did, except Senator Kennedy. All of them are complaining that he didn't answer the questions. I will say that my friend and colleague from Illinois did take the time to submit written questions. He deserves credit for that. But as far as I know, I don't believe he asked any questions at the hearing.

Mr. Craig: Mr. President, will the Senator yield further for a question?

Mr. Hatch: Yes, without losing my right to the floor.

Mr. Craig: I know the Senator is now in the Chamber. I have referenced these two articles. Those papers have condemned the filibuster, and they have condemned the strategy being used here to try to pry well beyond the oral arguments and briefs of Mr. Estrada.

I want to also ask, was the Senator also aware that the Freeport Journal-Standard, the oldest news source in northwest Illinois, has editorialized that this demand for Solicitor General memos would do serious damage to the ability of any member of the Justice Department to participate in its deliberative process, and that the same paper concluded Democrats are free to vote against him if they want, but vote they must; to do otherwise is an outrageous abuse of power.

The question then: Was the Senator aware that this story had reached our heartland and that now newspapers all over America are reacting? And was he aware that they are speaking to this kind of injustice?

Mr. Hatch: I am. Many editorials are complaining and pointing out that this is terrible politics. It is a terrible thing to do. It is a double standard. You quoted the Freeport Journal-Standard. Let me quote one paragraph:

If there is one example today of the worst in American politics, it is the decision by Senate Democrats to filibuster the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia. President Bush's description of the move as "shameful politics" is generous. It is a downright repugnant abuse of the Constitution.

The rest of the editorial is good as well. I ask unanimous consent that it be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Craig: Mr. President, I thank the chairman for yielding for questions.

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

Mr. Hatch: I will be happy to yield for a question without losing my right to the floor.

The Presiding officer: The Senator from Illinois is recognized.

Mr. Durbin:. I would like to ask the Senator--I was off the floor in the cloakroom--it is my understanding my name was raised during the course of the debate.

Mr. Hatch: It was raised in a question to me.

Mr. Durbin:. I thank the Senator. I ask the Senator, is he aware of the fact that I was present for the questioning of Miguel Estrada? I came to the hearing room on several occasions and, unfortunately, because of the timing of the schedule, I was never called for questions and forced to go to other committee hearings and submitted written questions to Miguel Estrada?

Mr. Hatch: I will take the Senator's word on that. There is no question the distinguished Senator did submit written questions which were answered, but I also answer the Senator that this hearing went on all day. It was an extraordinarily long hearing, and if the Senator had any questions that he wanted to ask, I think it was his duty and his obligation to get there and ask them, by the way, because we can all find time during the complete day's hearing to come to the committee.

I am not trying to find fault. What I am saying is that it is one thing to be able to speak from personal experience of having been there and asked questions; it is another thing to continually come to the floor and berate Mr. Estrada for not answering questions when, if you refer to the remarks of the distinguished junior Senator from Tennessee earlier this evening, that just is not true. The fact is, he answered the questions.

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

Mr. Hatch: I will say this--and I compliment my dear colleague from Illinois--my colleague from Illinois did submit written questions, but there were answers to those written questions as well. I have to say, my colleague from Illinois was 1 of 2 out of 9 Democrats--actually 10 at the time--who submitted questions. All of a sudden to come here with crocodile tears----

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

Mr. Hatch: Let me finish my remarks and, of course, I will. But to come here with crocodile tears and tell us that he just did not do enough and he did not answer the questions when he did, in fact, do so, and to misrepresent, as some have done--I am not saying the distinguished Senator from Illinois because I have not heard all of his remarks; people will have to judge that for themselves. But to come here and make those kinds of accusations when this man had one of the longest hearings, answered many more questions than almost any Clinton circuit court of appeals nominee had to answer when I was chairman, and to act like he does not deserve to have an up-or-down vote on the Senate floor, which we gave to every Clinton nominee, I think is a little bit beyond the pale, and I think that is what has been happening around here.

Personally, I resent it, on behalf of the United States of America and on behalf of this Hispanic nominee who has all of these qualifications which I believe even the Senator from Illinois has acknowledged.

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

Mr. Hatch: Without losing my right to the floor.

Mr. Durbin:. During the course of the hearing on Miguel Estrada, we usually have rounds where Senators ask questions. Does the Senator from Utah recall the length of the rounds of the questions that each Senator could ask of Miguel Estrada?

Mr. Hatch: I recall that they were lengthy, and I recall that Senator Schumer from New York chaired the hearing. I did not chair the hearing. He could have set up any kind of rounds he wanted to, and, as I understand it, everybody had a full opportunity to ask the questions they wanted, both Democrats and Republicans.

Mr. Durbin:. If the Senator will allow me to ask a question----

Mr. Hatch: If I can just continue, the Senator himself said Mr. Estrada has not answered any questions, and the Senator from Illinois at least implied that from time to time.

Mr. Durbin:. Since my name has been brought up in debate--it becomes a debate over the Senator from Illinois rather than Estrada--I hope the Senator from Utah will give me a chance to respond.

Mr. Hatch: Mr. President----

The Presiding officer: The Senator from Utah has the floor and the Chair requests that the Senator from Illinois address his questions to the Chair.

Mr. Hatch: I am not accusing my colleague from Illinois of anything other than based upon whatever he said on the floor.

Mr. Durbin:. Will the Senator allow me to ask a question?

Mr. Hatch: What I do want to make clear is I believe the distinguished Senator from Illinois and others have been saying that Mr. Estrada did not answer the questions. Let me recall, in case it might have slipped the mind of the distinguished Senator, "Follow-up Questions for Miguel Estrada, Senator Richard J. Durbin, Senate Judiciary Committee." Let me read a few of these.

One:

During your nominations hearing, Senator Edwards asked whether you consider yourself a "strict constructionist" when it comes to interpreting the Constitution. You described yourself instead as a "fair constructionist." How do you distinguish these two concepts? In what ways are they similar? In what ways are they different?

That is an intelligent question. I commend my colleague.

Mr. Durbin:. I thank the Senator.

Mr. Hatch: The response:

I do not believe that a legal text, such as the Constitution, should be construed "strictly" (i.e., grudgingly) or "loosely" (i.e., without careful regard to the text's language so as to achieve a meaning beyond that which the text will fairly bear). In my view, the Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains. Although the phrase "strict construction" is often used to reflect a legal philosophy that simply gives appropriate consideration to the text of the Constitution, the phrase is also sometimes used in a pejorative fashion to describe an approach to interpretation that does not fairly reflect the meaning that the words, history, and background of the text will fairly bear. For that reason, I avoided using that phrase in response to Senator Edwards' question.

The distinguished Senator from Illinois asked if the current members of the Supreme Court--this is written because he did not ask oral questions during the hearing:

Of the current members of the Supreme Court, who would you characterize as a strict constructionist? Who would you characterize as a fair constructionist? How would you characterize the remaining Justices?

Response:

Although the current members of the United States Supreme Court sometimes emphasize different interpretive tools-- giving, for example, greater or less prominence to text, history or precedent in a particular case--I believe each of them attempts in good faith to give a fair reading to the constitutional provisions that come before the Court. For that reason, I would characterize each member of the current Court as a "fair constructionist."

The question again from the distinguished Senator from Illinois:

In terms of judicial philosophy, please name several judges, living or dead, whom you admire and would like to emulate on the bench.

This is what Mr. Estrada responded:

There is no judge, living or dead, whom I would seek to emulate on the bench, whether in terms of judicial philosophy or otherwise. If I am fortunate enough to be confirmed, I hope to seek aid from whatever legal materials may shed light on the problem before me, and thus to reach the correct answer to that problem to the best of my abilities, without any preconception about how some other judge might approach the question.

I have been fortunate to know several great judges and justices in my lifetime. I admire Judge Amalya Kearse and Justice Anthony Kennedy, for whom I was a law clerk. During my time as a law clerk for Justice Kennedy, I also got to work with retired Justice Lewis F. Powell, Jr., for whom I developed a great deal of affection and admiration.

Amalya Kearse was a Carter appointee to the Second Circuit Court of Appeals. In other words, this man has admired a Democratic judge. Anthony Kennedy is, of course, considered a moderate conservative on the Supreme Court. He served him as a clerk, and admires him. Then he admires Lewis F. Powell, Jr., who is considered one of the leading moderate judges during his lifetime on the Court.

I could read all of these questions and answers, and I think any fair person would say he gave some very good answers that would pass almost any professorial, jurisprudential, legal, or other analysts' reviews.

I ask unanimous consent that the followup questions for Miguel Estrada by Senator Richard J. Durbin and his answers be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Hatch: Mr. President, I do not want to read them all, but I will if I have to, and I think the distinguished Senator from Illinois ought to be fair.

These answers are very competent, good answers by a very competent, well-qualified, terrific nominee for the Circuit Court of Appeals for the District of Columbia, the first Hispanic nominee in the history of this country. I suggest you read your own answers to your own questions, and I think you will be pretty impressed with him.

(Mr. Ensign assumed the Chair.)

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

Mr. Hatch: Without losing my right to the floor.

Mr. Durbin:. Would the Senator concede it is virtually impossible to conduct a debate in this format where every question I ask is questioned? Will the Senator be willing to enter into a unanimous consent agreement for the next half hour, equally divide the time between us, and then return the floor to the Senator from Utah so we can have a real debate rather than a contrived attempt to ask questions and to make rebuttals to statements made on the floor?

Mr. Hatch: Of course I will not. First, I have the floor and I am retaining the floor because I have questions from both sides. I am willing to take questions from your side. I am not ignoring those. It is about time the American people hear the truth. We have heard enough rubbish. Now we should hear the truth. In all honesty, that is what we are going to do this evening.

I have heard a lot of ridiculous remarks over there that do not really deserve listening to. So we are going to hear some remarks tonight that deserve being listened to, and we are going to get the facts. This unmitigated bullcorn that he has not answered questions is exactly that.

I think the distinguished Junior Senator from Tennessee tore the hide off the Democrats tonight. I was so doggone impressed, I want to compliment my colleague. But he was not the only one. I have had colleague after colleague stand up over here and tell the truth, and I have had colleague after colleague over there hide behind these phony issues they have raised. They are phony, and it is a double standard. I am ashamed of some of the arguments that have been made over there, absolutely ashamed, and every Hispanic in America ought to be ashamed that they would stoop to this level against a qualified nominee. But not just every Hispanic, every American who wants a great judiciary ought to be outraged by what is happening.

I have never seen this type of treatment of anybody who has been nominated to a circuit court of appeals. I have seen some pretty shabby treatment in my day for some of the people who have been appointed by Republican Presidents, but nobody has had to endure the calumny and the downright despicable comments that this Hispanic nominee, with all these qualifications in the world, has had to endure. It is disgusting.

I know there are people on the other side who have clear thinking who ought to be disturbed by this, and I hope they will rise up in that caucus and say, we have had enough of this. We should not be treating any American this way, let alone somebody like this Hispanic.

Mr. Reid: Mr. President, parliamentary inquiry.

The Presiding officer: Does the Senator from Utah yield for a parliamentary inquiry?

Mr. Hatch: Not at this point. I would like to finish what I am saying.

The Presiding officer: The Senator from Utah has the floor.

Mr. Reid: Parliamentary inquiry, Mr. President.

Mr. Hatch: Without losing my right to the floor, I am happy to yield for a parliamentary inquiry.

Mr. Reid: Mr. President, I would ask the Chair to determine if the word "despicable" relating to the remarks that we have been making for 10 days----

Mr. Hatch: I withdraw the word. I ask unanimous consent that that word be withdrawn.

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

Mr. Hatch: Even though I think it was probably the right word to use.

The Presiding officer: The Senator from Utah has the floor.

Mr. Hatch: I am happy to yield to the Senator from Virginia without losing my right to the floor.

Mr. Allen: I ask the Senator from Utah to yield for a question.

Mr. Hatch: Without losing my right to the floor.

Mr. Allen: Mr. President, Senator Warner, who was presiding earlier, knows the Senator from Utah is not alone in the feelings he is expressing. We see it in Virginia. In fact, we see it all the way across the Nation, from the San Diego Tribune to all the papers in Virginia that have taken a stand on this issue. They state the Democrats are creating a new double standard that applies only to the nomination of Miguel Estrada. Editorials are unanimous in Virginia, whether it is the Fredericksburg Free Lance-Star, the Richmond Times- Dispatch, even the Winchester Star out in the Shenandoah Valley. They all say, stop filibustering, take a stand and confirm this highly qualified nominee. The Winchester Star in particular--and, by the way, that is a newspaper that is owned by a former colleague of some of our Members, Senator Harry Byrd, and they wrote in particular that the request for the Solicitor General memoranda is outrageous and that to accede to it would compromise that body's ability to properly defend the Government's interests.

Is the Senator from Utah aware that even editorial writers in this fine community in the Shenandoah Valley of Virginia found this Democratic request so improper?

Mr. Hatch: I was not aware of that. But I have to say, I served with Senator Harry Byrd. He is a marvelous human being. He was an Independent who voted mainly with the Democrats, but a very fair, honorable, decent man, one of the finest people who ever served. I agree with the editorial 100 percent.

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

Mr. Hatch: Without losing my right to the floor.

Mr. Allen: Could the Senator share with us what the historical practices are as far as the deliberative memoranda are concerned? Have they ever been asked for in confirmation hearings? We are talking about this double standard. They are asking for something, but what is the record? Has this ever been asked for before?

Mr. Hatch: No one before this nominee, to my knowledge--and I believe I am accurate, and we have checked it--no one has ever asked for appeal recommendations, certiorari recommendations, and amicus curiae recommendations. The reason they never have is that it is--I will use the term--despicable to ask for them because they know they cannot be given; that no self-respecting Attorney General or President would allow that to happen because that is a direct intrusion into the deliberative process of the Solicitor General's Office, the attorney for the people. Nobody else has ever done that before.

So we have to ask, why is it being done? And why would seven former Solicitors General, four of whom are Democrats, come out and say this cannot be done? Because they are right and my colleagues on the other side are wrong. They know they are wrong. I think that was geared to try to create a red herring issue so they could say, oh, my goodness, we do not know enough about him.

It took them 505 days to hold a hearing. I presume in that 505 days, knowing how the Judiciary Committee works--and I really know how it works--every Democrat staffer assigned to that was going through every document this man has ever had anything to do with. They scrutinized him like they scrutinize any criminal, and certainly he is not that. But they scrutinized him. That is not a bad thing. I am not criticizing them for that. They know everything about Miguel Estrada that is knowable, and there is a lot. The transcript of the hearing is that big. Gee whiz, they act like there were not any questions or answers. Are you kidding? I think they think sometimes they can say these things and the American people are just going to buy it. Well, we are going to make sure they do not buy it because it is not true. That is what is killing me, is that my colleagues are saying things that just simply are not true if one looks at the Record.

Never before have those three areas of recommendations been asked for. They cite Robert Bork. They cite Justice Rehnquist. Those materials that were given were very limited. They were not anywhere near as sensitive as these. They were not necessarily privileged, although I believe some of them were given just because they were very limited requests. These are broad requests of documents that literally should never be given to any other branch of government, if we want a functioning Solicitor General's Office.

This is a game being played. It is a double standard and very unfair to this nominee. I think my colleagues are pointing that out in no uncertain terms.

Mr. Allen: Mr. President, will the Senator from Utah yield for a final question?

Mr. Hatch: Without losing my right to the floor.

Mr. Allen: I ask the Senator from Utah if he saw the responses that all of us were seeing, as this filibuster drags on, this unfair consideration of Miguel Estrada, whom Senator Warner and I introduced to the committee nearly a year and a half after the President nominated him back in September--is he aware as more and more people read about this and hear about it that he is getting more support?

Our senatorial committee Web site has had over 20,000 petitions in support of President Bush's nomination of this outstanding hero. Is the Senator aware that Miguel Estrada is the American dream, the American dream being born these days--not in the days of Horatio Alger, but individually came to this country with his own hard work, studiousness, and efforts, rose to lead the Law Review at Harvard, and other positions in government. Is he aware that support is building by the hour for Miguel Estrada and also in opposition to these obstructionist tactics denying this man a fair up-or-down vote?

Mr. Hatch: I have talked to a wide variety of people today and every day. I have been on radio shows talking about this. I have been on Hispanic radio shows, Latino radio shows. They are getting very angry. And they should.

I am calling upon all Democrats, Independents, and Republicans, as well, to come out of the woodwork and let our friends on the other side of the floor know this will not last. They resent this. There is a price to be paid for this type of obstruction, which is what it is. This is unfair obstruction that we did not do to their nominees.

I cannot understand for the life of me why they are doing it to this Hispanic nominee with all these credentials, with the gold standard highest rating of the American Bar Association--their gold standard by their own definition. I do not understand it personally. I cannot see one reason to do it. People are getting very upset. I am getting thousands of calls saying: Hang in there; do not let them get away with this or the whole judiciary will be hurt; the whole judiciary will be hurt if this continues.

If we have a filibuster that continues like this, our colleagues on the other side are risking the complete breakdown of this process, the complete breakdown of the judicial nominating process, something that we have never done on our side.

Even when there have been cloture votes where they were not true filibusters but still cloture votes, their nominees got votes up and down.

If that is what they are about, I will shut up and not say much more. That is all we are saying. Just vote. All this complaining. Yesterday, I saw the minority leader come on the floor and say we should be getting about all the important business of the country. There is nothing more important in this country than having a fair judiciary. It is the judiciary that has saved the Constitution through all these years. This is a very important nominee and a very important court. If we do not do what is right, everything else that is important might not be as important in the future because we will not have a Constitution to abide by and live by that has kept this country free. This is very important.

To come from that side, when last year for the first time since the Budget Act was enacted, they did not pass a budget because they had to face what we always did--it is tough to do it. They were not willing to put up with it and do the tough things, nor did they pass the majority of the appropriation bills. We had to wait until we became the majority, and we did it in an omnibus after the first of the year, but only after delays caused by the other side.

It was something I could hardly believe. I said if you want to get to the other important things which we do, too, have a vote up and down like we did for all of your nominees. Why treat this man differently? Why obstruct this nominee? Why play the politics of obstruction? Why be so unfair and why have this double standard?

The Presiding officer: The Senator from Utah.

Mr. Hatch: I am happy to yield to the distinguished Senator from North Carolina, and then I will yield to--

Mr. Reid: I object. This is not proper procedure.

The Presiding officer: The Senator from Utah has the floor and may yield.

Mr. Hatch: I yield to the distinguished Senator from North Carolina for a question, without losing my right to the floor.

Mrs. Dole: Mr. President, in North Carolina the Kinston Free Press and the Winston-Salem Journal have called on Democrats to stop this filibuster. Even a student writer for the University of North Carolina school paper took the time to write about it and criticize the filibuster. This obstructionism is being noticed and people are angry.

On this question of the Solicitor General's memos, the Winston-Salem Journal wrote: "Congress should not be asking for such material."

Does the Senator from Utah agree with the journal that "if Democrats have a substantive reason for opposing Estrada's nomination, it is past time to produce it. If not, they should let the Senate vote."

Does the Senator agree?

Mr. Hatch: I sure do agree with that. There has not been one substantive argument against this man other than the phony arguments like getting these privileged documents that everyone knows the administration cannot get. There are two reasons for that: They want to embarrass the administration by trying to make the administration look like they are trying to withhold documents that they should give, when they should not give them; and they are trying to defeat Miguel Estrada on what is really a red herring issue.

That particular editorial of the Winston-Salem Journal said: The truth is, the Democrats oppose Estrada because they believe he is too conservative; an unsavory implication is that they believe Hispanics should be liberal.

I think the editorial got it right on the money.

Another truth is, as the Senator said: The Constitution gives Presidents the right to nominate judges and the Presidents usually choose nominees they believe share their political views. If Democrats have a substantive reason for opposing Estrada's nomination, it is past time to produce it. If not, they should let the Senate vote.

I ask unanimous consent the Winston-Salem Journal article be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Bunning: Will the Senator yield?

Mr. Hatch: I yield without losing my right to the floor.

Mr. Bunning: Mr. President, I say to the Senator from Utah, I have read an editorial from the Riverside Press Enterprise in California which said in response to this fishing expedition on the confidential memoranda that the Democrats claim they want to review Mr. Estrada's legal views: One suspects that is not the role the Democrats have in mind for their memoranda. They probably hope to expose Mr. Estrada's conservative views, which no one doubts he holds, in hopes of defeating the nomination or at least scoring some political points.

Does the Senator agree that is the reason they are doing what they are doing, trying to score political points?

Mr. Hatch: I don't see how they score political points by filibustering the first Hispanic nominee ever nominated to the court of appeals for the District of Columbia. That is a heck of a way to score political points, unless it is with their really far left people who seem to be in domination of that party right now. They are pleased.

People for the American Way, you have to really be on the left to be with them. In fact, their biggest support comes from Hollywood. Not that we should decry our Hollywood stars as experts on everything. I don't think we should always find them not to be. I am sure they are experts on some things, but they seem to not fully understand what is going on here.

The Press Enterprise, Riverside, CA, editorial says: The Democrats tactic employed last week of filibustering the nomination of Miguel A. Estrada to be the U.S. Court of Appeals for the District of Columbia Circuit is an anything-goes strategy that ought to be abandoned.

And then later: A first step would be to not filibuster nominations like this one. They say: "Parties need to deescalate." I agree with that.

A first step would be to not filibuster nominations like this one of a well-qualified nominees. He's distinctly an American success story, having immigrated from Honduras, gone to Columbia and Harvard, and served as a clerk to a Supreme Court Justice.

I ask unanimous consent the Press Enterprise editorial be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Sessions: Will the Senator yield?

Mr. Hatch: Without losing my right to the floor.

Mr. Sessions: The Senator, as chairman of the Judiciary Committee, disclosed the Department of Justice has declined to produce these internal memoranda. I ask the Senator this: Is it a fact those memoranda belong to the U.S. Department of Justice and under the attorney-client rule they are not Miguel Estrada's and he has no ability whatsoever to produce these documents?

Mr. Hatch: I certainly agree. I have heard the distinguished Senator from Illinois say that he should have produced these documents. He has no right to produce them. He personally said I am proud of my work. If they can give it up, I would be proud to have it given up. But he knows they cannot. I believe the distinguished Senator from Illinois knows they cannot give up these documents. Everybody knows that. That is why it is such a phony red herring issue, but it is the only one they really have.

They started off with he has not had any judicial experience. That is the phoniest thing of all, because that means virtually every Hispanic lawyer doesn't have a chance to be on the Federal bench because they have no judicial experience, in spite of the fact that five of the eight judges on the DC Circuit Court of Appeals had no judicial experience before they went on the court.

Why the double standard? Why is it we are requiring this of Miguel Estrada but not of them? Why is it when Republicans ran the committee we didn't have that difficulty? We never raised that phony issue. Why is it raised now?

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

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

Mr. Hatch: Without losing my right to the floor.

Mr. Sessions: Chairman Hatch, I know you chaired the committee and you conducted many hearings, both in your recent chairmanship and prior to that when you were chairman of the committee. But isn't it a fact that the hearing of Miguel Estrada was conducted when the Democrats were in control of the Judiciary Committee, Senator Leahy was the chairman, and they held the committee hearing as long as they chose and could have held even longer hearings had they had any further questions to ask?

Mr. Hatch: It is a fact that they were in control. They chaired the hearings. Senator Schumer chaired the hearing at the direction of Chairman Leahy, the chairman. It was one of the longest hearings for a Circuit Court of Appeals nominee I can recall. They asked every question they wanted to. He answered them, and he answered them fairly and well, as I have been showing here tonight, and as the distinguished Junior Senator from Tennessee, I think, showed in detail earlier in the evening. I commend him and ask everybody to read that.

In all honesty, they controlled the whole doggone process. They even said on the floor, even during this debate, that the hearing was fair-- because they conducted it. If it was fair, that means they covered all the questions they wanted answered.

Then we have these phony arguments that he didn't answer the question. Read the remarks of the distinguished Senator from Tennessee, Senator Alexander, this evening and read the transcript. Read the answers to these written questions. I only read a few of them because it more than blew away those phony arguments. Why the double standard? Why the obstruction? Why are we going through this?

I said I would yield to my friend and colleague from Nevada, without losing my right to the floor.

Mr. Reid: I would say to my friend, I would respectfully submit, you don't need to say "without losing your right to the floor." You have the floor. You don't have to say that.

Anyway, I ask my distinguished friend from Utah, the neighboring State to Nevada: It is true, is it not, whether you agree or not, we have asked that the Justice Department, the administration, release the memos written by Miguel Estrada when he worked for the Solicitor's Office? You would agree with that?

Mr. Hatch: I agree Senator Leahy sent a letter to the Department of Justice asking for these privileged matters that have never been given up before, and will not be given up, and should not be given up; knowing, I think, deep down, that they would not be given up.

Mr. Reid: The Senator, of course, is aware----

Mr. Hatch: I think it is a political game, if you want to know.

Mr. Reid: The Senator has stated in answer to the question of the distinguished Senator from Alabama that Miguel Estrada has no ability to have these released, is that true?

Mr. Hatch: That is correct. He doesn't control the Justice Department. He is no longer an employee of the Justice Department. Nor should he ask the Justice Department for these records.

Mr. Reid: I further ask the Senator, it is true, however, that the administration, whether through the counsel's office of the President, the President himself, or the Attorney General, could release those materials?

Mr. Hatch: No, it isn't true. I don't believe the Attorney General could. I don't think any responsible Attorney General could release those. If you are saying is it theoretically possible for somebody to disobey the law, the rules, to not live up to the privileged and confidential information, to ignore every aspect of the executive branch of Government--I suppose somebody could say yes. But I can't. I don't think he would have--I don't think the Attorney General has that privilege; no, I don't.

Mr. Reid: Let me ask the Senator this question. Are you saying on the five occasions we know of, there could be more, when the Attorney General released memoranda from the Solicitor's Office relating to Rehnquist, Bork, Civiletti, and others, that they were violating the law when they released those documents?

Mr. Hatch: They were completely different documents. They had nothing to do with recommendations for appeals, certiorari petitions, or amicus curiae matters. No. They have never, ever been asked for before, to my knowledge, and they have never, ever been given, nor would they.

By the way, there have been some limited documents given by the Justice Department in some nomination matters, none of them related to what were requested by the Senate Democrats in this matter. And there are only a couple of cases where the Attorney General did allow that.

The other cases, they appeared to have been leaked by friends of Democrats at the Justice Department. So they were not given up by the Justice Department. We have more than made that case throughout this debate. There is no question about it. And it is just another phony argument. I do not blame my colleague from Nevada for not knowing that. But I think it is time to learn it.

Mr. Reid: Could I ask the Senator another question?

Mr. Hatch: Sure.

Mr. Reid: I don't mind the Senator commenting on my intelligence.

Mr. Hatch: I think the Senator is very intelligent.

Mr. Reid: Let me just complete my question. The Senator has knowledge that on occasions there have been memos released from the Solicitor General's Office relating to matters before the Senate. I ask the question of the Senator from Utah, does that mean on those occasions when they were released, a law was violated?

Mr. Hatch: I am sorry, I missed that.

Mr. Reid: We have established in the dialog between the Senator from Utah and the Senator from Nevada that there have been occasions where the Solicitor's memos have been given to the Senate. The Senator says they have been on rare occasions, two occasions, I think the Senator from Utah said. We say five. But on those occasions, does the Senator believe that the law was violated, and those people who released those memos should have been prosecuted in some way?

Mr. Hatch: They were not the same papers, they were not privileged, confidential documents of the order of magnitude that these are.

Let me add, the Clinton nominee--this is a Caucasian, by the way, not a Hispanic. The Clinton nominee, William Bryce, who was confirmed to the Federal circuit in 1994, was an assistant Solicitor General, just like Miguel Estrada. But nobody asked for his memoranda from his time in the Solicitor General's Office. He is one of eight former Solicitor General Office attorneys who have been confirmed at circuit courts without disclosure of their memoranda.

Why the double standard? Why do we do this to the only Hispanic who has ever been nominated for the Circuit Court of Appeals? And why are the Democrats doing this to this Hispanic man? Why are they being so unfair? We never did it. We wouldn't dare do it. The fact of the matter is, I don't think anybody who understands the nature of the Solicitor General's Office, and apparently some on your side don't seem to understand that----

Mr. Reid: If my friend will yield for one final question?

Mr. Hatch: Let me just finish my remarks and I will go to your final question.

Why the double standard? Is there a specific allegation that my colleagues are concerned about for which they want to review these highly confidential documents? If there is, I would like to know what it is. I don't want a fishing expedition, even if we could give them. I don't think there is a good explanation as to why they want these documents. I think that is why everyone who looks at this in fairness views it as nothing but a fishing expedition, which is exactly what it is.

We couldn't get Miguel Estrada any other way, so why don't we go fish through all these documents and find just something to pin our antagonism towards him on, so we do not look so doggone bad? Frankly, I think the arguments on the other side look terrible.

Mr. Greg: Point of order.

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

Mr. Hatch: Let me yield for one final question by the distinguished minority whip, and then I will yield to someone on this side.

The Presiding officer: The Senator from Nevada has the floor.

Mr. Reid: Mr. President, I say to the distinguished Senator from Utah----

Mr. Hatch: I want to do this in fairness.

Mr. Reid: Bork, Civiletti, Rehnquist, and two others, none of whom are Hispanics--and I think a person's ethnicity has nothing to do with the point we have made. The point we have made is on other occasions, memos from the Solicitor General's Office have been made public in this body.

Mr. Hatch: Can I correct the Senator? They were not Solicitor General memoranda. They had nothing from the Solicitor's Office.

Mr. Reid: I would respectfully submit we have in the Record, admitted yesterday, letters exchanged with Senator Biden and the Solicitor General at that time, Bolton, who was Solicitor General, that laid out in some detail the materials that were obtained, and in addition to that we have other materials obtained from the Solicitor General's Office that were memoranda. They are either legal or they are not.

I have to ask the Senator this question: If these memos were relevant--I repeat that they were. It is in the Record. We have dates on the letters of when they were exchanged between the Solicitors General and Senator Biden, who was chairman of the committee at that time. I respectfully submit to my friend they are not legal. The decision made by the administration is that they are not going to release these documents.

Mr. Hatch: Does the Senator have a question for me?

Mr. Reid: Was not a decision made by this administration that they are not going to release these documents even though they have in the past?

Mr. Hatch: Let me answer in this way. Nobody has previously asked for appeal recommendations in the Solicitor General's Office--some of the most important work that is done; certiorari recommendations in the Solicitor General's Office; some of the most important work done by that office; or amicus curiae recommendations, some of the most important work done in that office.

Let me read from the letter from the Department of Justice about what it has to say about this in response to this type of allegation by the Democrats.

Of the seven cited nominees--

Remember. We hear all about all of these people who got Department of Justice materials. Let us look at the facts. I hope my colleague will listen to some. I hope my other colleagues will listen because we have had these false arguments made day in and day out. So I am going to put them to bed right now.

Of the seven cited nominees, the hearings of only two, Judge Bork and Judge Easterbrook, involved documents from their service in the Office of the Solicitor General. Senator Schumer placed into Mr. Estrada's hearing record a single, two-page amicus recommendation memorandum that Judge Easterbrook authorized as an Assistant to the Solicitor General. The official record of Judge Easterbrook's confirmation hearing contains no references to this document and based on a comprehensive review of the department's files we do not believe that the department authorized its release in connection with Judge Easterbrook's nomination. Senator Schumer's possession of this memorandum does not suggest that the department waived applicable privileges and authorized its disclosure in connection with Judge Easterbrook's or any other nomination.

In other words, someone leaked that document illegally. And my colleagues have an illegal document leaked. At least that seems to be the glaring thing that happened here.

The Justice Department goes on to say:

The hearing record of Judge Bork's nomination to the Supreme Court demonstrates that the committee received access to a limited number of documents related to three specific subjects of heightened interest to the committee, two of which were related to Judge Bork's involvement in Watergate- related issues and triggered specific concerns by the committee.

We have not had specific concerns here. All we have is a fishing expedition. These are with specific concerns.

Let us go further with what the Justice Department says:

The vast majority of memoranda authored or received by Judge Bork when he served as Solicitor General were neither sought nor produced. And the limited category of documents that were produced for the committee did not reveal the internal deliberative recommendations or analysis of assistants to the Solicitor General regarding appeal, certiorari, or amicus recommendations in pending cases. The remaining five nominations cited at the hearings similarly do not justify the disclosure of deliberative material authored by Mr. Estrada. None of the limited documents disclosed in the hearings for these five nominations involved deliberative memoranda from the Office of Solicitor General. The committee, with respect to these five nominations, requested specific documents primarily related to allegations of miscondcut or malfeasance identified by the committee. Moreover, as noted before with respect to the nomination of Judge Trott, the committee requested documents wholly unrelated to Judge Trott's service at the department.

Again, a vast majority of deliberative memoranda authored or received by these nominees were never sought nor received by the committee.

In sum, the existence of a few isolated examples where the executive branch on occasion called for very specific information does not in any way alter the fundamental and long-standing principle that memoranda from the Office of the Solicitor General and deliberative Department of Justice materials more broadly must remain protected in the confirmation context so as to maintain the integrity of the executive branch's decision-making process.

In conclusion, we emphasis that the Department of Justice appreciates and profoundly respects the Judiciary Committee's legitimate need to evaluate Mr. Estrada's qualification for the Federal bench. We again suggest, however, that the information currently available is more than adequate to allow the committee to determine whether Mr. Estrada is qualified to be a Federal judge.

I might just add again that this is more than adequate. This is more than has been asked of any nominee in history. Why the obstruction? Why the unfairness? Why are we so unfair to this Hispanic man who has all these qualifications that normally would blow people's minds--and do blow people's minds he is so qualified. Yet here he is being filibustered by my colleagues.

I call on my colleagues of goodwill to quit playing games and start doing what is right.

Mr. Chanbliss: Mr. President, will the Senator yield?

Mr. Hatch: I yield to the distinguished Senator from Georgia.

Mr. Chanbliss: Mr. President, there have been several editorials written by newspapers in my State that are very critical of the Democrats for the obstructionist attitude and filibustering of this particular nomination of Miguel Estrada. One of those editorials was written by the Atlanta Constitution, which is extremely critical of the process the Democrats are going through tonight as they have for the last 3 weeks. The Atlanta Constitution is one of the most liberal papers in the United States of America.

Mr. Hatch: That has been my experience.

Mr. Chanbliss: With respect to this issue of the memoranda that they have requested be produced by Mr. Estrada or by the Justice Department, I note that the Savannah Morning News in Savannah, GA, has written that the "request is unprecedented"--that "the Democratic leadership wants to continue trolling further and further from shore in a desperate attempt to find something--anything--they can hang an accusation on."

They even write that perhaps they could subpoena a list of videotapes that Mr. Estrada rented as they did for Supreme Court nominee Robert Bork.

Does the Senator from Utah agree that this is a true fishing expedition as he has previously alluded, and if the Democratic leadership doesn't like what they have so far they can still vote against Mr. Estrada?

Mr. Hatch: I have been an attorney for a long, long time. I know a fishing expedition when I see one. I have been a Senator for 27 years. I have seen fishing expeditions before but never one as blatantly as this one, or exploiting a red herring issue like they are trying to do on this one.

I compliment the Senator. Let me read from the editorial in the Savannah Morning News just a couple of paragraphs.

The Democrats are upset because they haven't found a "gotcha" moment in Mr. Estrada's testimony or scholarship that would embarrass or contradict him, and thus provide them ammunition to defeat his nomination.

Then they went on to quote saying what the Senator from Georgia quoted.

They want to continue trolling further.

This is trolling like you have never seen before.

Then the next paragraph says:

The problem is, they've already had ample opportunities. If they weren't happy with his answers at his hearing last September, Democrats could have demanded another hearing. They did not. Nor did they take full advantage of normal procedure and submit written follow-up questions to Mr. Estrada after the hearing--only two of the 10 committee Democrats did so.

Because they lack the votes to defeat the nomination on the Senate floor they have resorted to manipulating the process by any means necessary--not, mind you, because they have evidence to oppose him, but because they don't.

Boy, I agree with that editorial.

Then they conclude by saying:

Mr. Estrada's nomination deserves an up-or-down vote in the Senate and not be held hostage by bipartisan parliamentary games.

I tell you, that sentence: Because they lack the votes to defeat the nomination on the Senate floor, they have resorted to manipulating the process by any means necessary, not, mind you, because they have evidence to oppose him, but because they don't.

This editorial writer and these writers get it accurately. They have not laid a glove on Miguel Estrada. Here we are in the third week of a filibuster against the only Hispanic nominee in the history of the country nominated to the Circuit Court of Appeals for the District of Columbia.

I ask unanimous consent that the Savannah Now editorial be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Durbin:. Will the Senator yield?

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

Mr. Hatch: Without losing my right to the floor, I yield to the Senator from Colorado.

Mr. Allard: Mr. President, is the Senator aware that the two largest newspapers in Colorado--the Rocky Mountain News and the Denver Post-- have both called for the Democrat leadership not to filibuster this judicial nominee?

Mr. Hatch: I am aware.

Mr. Allard: Is the Senator aware that the Denver Post, which endorsed Al Gore in the 2000 Presidential election, wrote: "To use a filibuster is to impose a new requirement that judges be confirmed by a supermajority"?

And is the Senator aware that the Rocky Mountain News wrote in an editorial: "Keeping others from voting their conscience on this particular matter is simply out of line"?

Mr. Hatch: I am aware of those editorials. And I am also aware, and I want my colleagues to know, that there are more than 50 editorials throughout the country expressing the same matters.

I hold in my hand this binder of editorials in favor of Miguel Estrada--just editorial after editorial after editorial, saying how unfair this process really is, how unfair my colleagues on the other side have been, how they have ignored principles of just plain common decency, how they are obstructing--obstructing, in an unfair way--of course, obstruction, I guess, is always unfair--but how they have been obstructing this nominee. Why? Because, as the editorial writers say, they do not have anything on him.

Mr. Allard: I thank the Senator from Utah for yielding.

Mr. Greg: I ask if the Senator from Utah will yield for a question.

Mr. Hatch: Without losing my right to the floor.

Mr. Greg: I think the point that has been made by the Senator from Colorado is an appropriate one, citing the editorial from the Denver Post, I guess it was. And it raised a constitutional issue which is an issue that has not been discussed here very much.

Knowing that the Senator is one of the leading authorities in the Senate, and really in the Nation, on the issue of constitutional law, I would be interested in his interpretation of article II, section 2, of the Constitution, which says--and I will simply read it--

He--

Referring to the President--

shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States. . . . The implication being that it does not take two-thirds to appoint a judge but, rather, a majority.

Is that your interpretation of the Constitution? And what is the implication of moving to a 60-vote majority in order to appoint a judge?

Mr. Hatch: The Senator is absolutely right. In the very same part of the Constitution, it mentions that there is a supermajority vote required for treaties. By implication, the Senator is correct, advice and consent means a vote up and down on the Senate floor. It certainly does not mean we should have to have a supermajority vote of 60, which is what the Democrats are insisting upon in this body, in order to confirm a circuit court of appeals nominee.

And why is the reason for that? Because the Constitution also talks in terms of the coequal branches of Government: the executive, the legislative, and the judiciary. All are supposed to be coequal, have coequal powers. If we require--because the Democrats will not end the filibuster against Miguel Estrada--60 votes before we can confirm any judge to a position in the judiciary, that diminishes the coequal power and status of the President. It also diminishes the coequal power and status of the judiciary, while increasing and augmenting the power of the legislative branch.

That is unconstitutional. And my colleagues are acting in a highly unconstitutional manner. And they are creating a constitutional crisis by refusing to end the filibuster and the obstructive tactics in this very important area of Constitutional law. And I have to tell you, there is a way around this, but I prefer that they end these obstructive tactics and that we, once and for all, decide that nobody is going to filibuster judicial nominees because the President does deserve, through his nominating power, a vote up and down--a vote up and down--on these judicial nominees.

That is as far as I am going to go this evening. But I have to say that my colleagues are asking for the world to see that the system is broken. If they break the system, then no holds barred, if they break the system, we have to uphold the Constitution on our side, and we are going to do it.

Now, all I can say is this. We have a clear majority of Senators who want to see Miguel Estrada confirmed. And a minority is obstructing-- obstructing--O-B-S-T-R-U-C-T-I-N-G--did I spell it right?--obstructing him from being a judge, and obstructing us from exercising our advice and consent powers the Constitution provides.

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

Mr. Hatch: I am delighted to yield to my colleague from Illinois.

Mr. Durbin:. I would like to ask the Senator the following question: Has he not stated during the course of the day that the memoranda which we are seeking, namely, memoranda prepared to the Office of the Solicitor General----

Mr. Hatch: The fishing expedition you are asking for?

Mr. Durbin:. Pardon me?

Mr. Hatch: You mean, the fishing expedition you want to have?

Mr. Durbin:. The Senator may characterize it as he chooses.

Mr. Hatch: I do characterize it as such.

Mr. Durbin:. Have you said the memoranda we are seeking in order to understand the jurisprudential philosophy of this nominee has not been produced except in those instances where it has been leaked or other instances where we have questions related to ethical considerations?

And is the Senator not aware of the fact that I am holding in my hand a memorandum from Frank Easterbrook to the Solicitor General relative to the Bork nomination, produced for the Senate Judiciary Committee, relating not to an ethical case but rather to a civil rights case, and that it is in a category that the Senator from Utah has said, categorically, this evening, has never been produced; namely, a recommendation for an amicus brief participation?

Is the Senator from Utah aware that the very brief and memorandum which he said has never been produced was, in fact, produced to the Senate Judiciary Committee during the Bork nomination? And I hold a copy in my hand.

Mr. Hatch: I do not think the Senator knows that came from the Bork matter. I don't think you can make that claim.

Mr. Durbin:. That is exactly where it came from.

Mr. Hatch: Let me answer the question, and let me address some of the specific examples my Democratic colleagues have represented as precedent for their demand.

One, of course, is Frank Easterbrook, who is a judge on the Seventh Circuit Court of Appeals, which the Senator is raising. The Democrats' mere possession of a single memorandum--a 2-page amicus recommendation that Mr. Easterbrook wrote as an assistant to the Solicitor General-- does not suggest that the Justice Department waived any privileges or authorized it to be disclosed. It did not.

The official record of the Easterbrook confirmation hearing contains no references to this document. There is nothing in the hearing that shows a reference to it, at least as far as I know. And I am quite sure about that.

After comprehensively reviewing its files, the Justice Department concluded that it never authorized the document's release.

Now, last fall, I sent a letter to Senator Schumer, and then to Senator Leahy, specifically asking for information about how the Democrats obtained this memorandum that the Senator has been waving here, with impunity, by the way. To this day, I have not received a response to my question. There is probably a very good reason for it because he should not have that memorandum. I do not know how they got it.

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

Mr. Hatch: Not yet.

That single document provides no precedent for the Democrats' sweeping request for every document Mr. Estrada ever prepared on appeal recommendations, certiorari recommendations, and amicus recommendations.

Now, let me take a clear look at this. The Justice Department has no record; the hearing has no record. How is it that the Democrats have that? I can guarantee you they don't have it legally--at least I think I can guarantee that. That is the reason why I have not received a reasonable response. I haven't received any response. I would think if they had it legally, they would give me a response on it.

Mr. Durbin:. Will the Senator yield?

Mr. Hatch: I asked for it and, as ranking member of the committee, I was entitled to it. They ignored my request.

The Senator made a couple other remarks I find particularly offensive. I will get into those other remarks later. The Senator had another question.

Mr. Durbin:. Will the Senator yield for a further question?

Mr. Hatch: Yes, without losing my right to the floor.

Mr. Durbin:. The Senator is taking exception to this memorandum that the Solicitor General produced during the Bork nomination relating to an amicus. I hold in my hand a copy of the transcript of the hearings of the Committee on the Judiciary relating to the nomination of William Bradford Reynolds to be Associate Attorney General of the United States. And written within the committee hearings, you will find on page 983 a copy of a memorandum to the Solicitor General, sent by Mr. Reynolds relating to the recommendation on an amicus brief. I ask the Senator from Utah, would he like to at least modify his earlier statement that the Department of Justice has never produced a memorandum to the Solicitor General relating to amicus briefs in light of the fact that it is part of the official transcript of his committee?

Mr. Hatch: Let me answer that question. The Senate sought and received materials in the course of pursuing specific allegations that Mr. Reynolds, while Assistant Attorney General for Civil Rights failed to enforce the Voting Rights Act and Civil Rights Act--as with Mr. Civiletti, by the way. The Department's disclosure was limited to specific cases of alleged misconduct--limited.

The sweeping request by the Democrats in this matter is completely different. There have been no allegations that Mr. Estrada engaged in any improper behavior or failed to discharge his duties. Significantly, although Mr. Reynolds previously had served as an assistant to the Solicitor General, the Senate never suggested--never--that his appeal, certiorari, or amicus recommendations should be divulged. Never.

Let's just be honest here. With regard to specific allegations, if the Senators have them, bring them out, instead of asking for a fishing expedition into what could be thousands of documents that are privileged down at the Department of Justice in the Solicitor General's Office. No self-respecting Attorney General or President of the United States is going to give you those documents. How you got some of these documents, I cannot say. I am not suggesting that my colleagues have done wrong in getting these documents, but somebody gave them to them who didn't have the authorization to do it. The Justice Department did not authorize the giving of whatever documents you have. I don't care that you have them. It doesn't mean anything to me, except that it is phony in my eyes to use them and try to say we ought to have this sweeping demand for maybe thousands of documents that we don't know what is in there, but we want to be able to fish through them and see if we can find something against Mr. Estrada.

I hope one of these days my Democratic colleagues will wake up and realize how ridiculous they look on these arguments. These are terrible arguments, phony arguments, if you will.