---

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

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

Mr. Coryn: The Senator from Utah is well versed in the law of attorney-client privilege. I believe that earlier I asked--and I am asking for clarification now--whether even if Mr. Estrada wanted to produce the memos that the Democratic minority wishes to receive, whether he has custody of those, or whether it is the client's privilege to waive or not to waive, and the client--in this case, the Department of Justice--decided not to waive any claim to the privilege they may have on these documents.

Mr. Hatch: Mr. Estrada said he is proud of the work he did. He would personally have no real problem. He also recognizes there is a good reason not to give those documents based upon law and confidentiality and upon client-attorney work product.

This is the attorney for the American people. If we start giving his internal documents out, he cannot function--he or she, whoever it is. So, yes, I am aware of that.

I was interested that over the last weekend, the Senator from New York, who has been very vocal in his opposition to Mr. Estrada--the conservative party of New York said they didn't know enough about him-- the same arguments the Democrats are using--by the way, this is almost 2 years they have been examining Mr. Estrada, going through everything they possibly can--Supreme Court briefs, all of his arguments, briefs in other cases, all kinds of other matters. They have had a full solid day of testimony and they asked written questions. Now they are complaining they don't know enough.

The conservative party of New York, as I understand it, wrote a letter to Senator Schumer and said: We don't know enough about you. How about giving us your internal documents with regard to these matters? Maybe he will do that. I don't know. In all honesty, no self-respecting attorney who understands this--and this includes the Solicitor General and the Attorney General--would give up his work product that he or she has been doing for clients. It would be unethical to do so. In this particular case, according to seven former Solicitors General--the only living ones to my knowledge--it would be a travesty to do it. It would undermine the very work of the Solicitor General's Office. Four of those were Democrats, three of whom I think he served.

So these arguments are really red herring, phony arguments. I don't know how they have the brazenness to keep bringing them up.

Mr. Coryn: If the Senator will yield for a further question, in my State of Texas, as in other States that we have heard from here tonight, there is overwhelming editorial support for Mr. Estrada's nomination. Six separate newspapers have called on the Democratic leadership to stop this filibuster, including papers from Waco, El Paso, Dallas, Austin, Fort Worth, Victoria, and I believe there is another one I saw from Tyler in east Texas.

Yet we hear that Democrats come to the floor and say, in effect, that nobody cares about this issue. And in the case of the senior Senator from New York, who earlier today indicated that Democrats really should not pay much attention to this, or worry about paying a political price because no one is paying attention--well, I would like to tell you that is not true in Texas.

Let me ask the Senator from Utah, would he agree with me that whether or not people are paying attention, is that the standard we have come to expect from this institution and Members of the Senate when it comes to doing the right thing and discharging our constitutional responsibilities, when it comes to advice and consent for judicial nominees?

Mr. Hatch: That is an excellent question. There is no question that people are paying attention to this. I have been overwhelmed by Hispanic concerns, just today, all over the country. They are starting to awaken to this. One of the Hispanic nominees--most all of them will say he should not be on the court just because he is Hispanic. We would not support him just for that, but he is qualified. He made the grade. He ought to be treated like everybody else. He will make a great judge. These are Democrats speaking, and Independents, and Republicans speaking. But editorial writers all over the country are speaking as well.

The Senator raised the Dallas News. In an editorial entitled "Rush to Judgment: Estrada nomination has been blocked too long"--we are in the third week of this--let me read a paragraph or two:

Democrats by now are in full filibuster. Senate proceedings, as carried on C-SPAN, resemble the film Groundhog Day, where the main character has to relive the same day over and over again. Every day, it's the same thing. Democrats get up, march over to the podium, and shuffle papers and recite their main complaint with Mr. Estrada--that he is conservative, unconventional, and unapologetic. That when he had the chance to hand them the rope with which to hang him during his hearing before the Senate Judiciary Committee, he refused to hold up his end.

I think that is pretty good. Then they say:

And so they have talked and talked, in hopes that Republicans will back down. They won't. Nor should they.

I might add, in the El Paso Times, which the Senator noted--let me read one line in that:

Set politics aside, confirm a well-qualified nominee, and work for the good of the country rather than the party.

In the Austin American Statesman, to mention three Texas newspapers:

If Democrats have something substantive to block the confirmation of Miguel Estrada's confirmation to the U.S. Circuit Court of Appeals for the District of Columbia, it's past time they share it. Estrada's nomination was announced in May--

They should have said 2001, almost 2 solid years ago--

and has been held hostage since by Senate Democrats who have yet to clearly articulate their objections to it.

I ask unanimous consent that these three editorials 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, let me say more to my distinguished colleague who I think has raised some pretty important issues here. It is absolutely astounding to me, because I have heard the same comments: We Democrats are not worried about this; nobody is paying attention to it; we are not going to pay a political price; we do not care what we do to this Hispanic man, even though he is highly qualified--and I heard a number of Democrats admit he is highly qualified--we are just going to do this.

I call them my colleagues. Look, I have used some pretty tough language here tonight. I do not want to apologize for it because I feel deeply, but I will apologize. I feel deeply about this issue. I am fighting for this man, as all of us Republicans are. Every one of us is concerned. Every one of us wants this man to be confirmed. Every one of us wants to see justice here. Every one of us wants to stop the obstructive tactics. Every one of us wants to do what is right here. So if I have been too enthusiastic this evening, I apologize. I feel so passionate about this, so deeply about this that I can hardly stand it.

I have never seen, other than in Supreme Court nominations, this type of shabby treatment. I have never seen it before. I think I have a reputation for fairness around here. I think I have a reputation for knowing what is going on in the Judiciary Committee. I think I have a reputation for putting through the Clinton judges. I see this shabby treatment, and I cannot help but get emotionally disturbed by it. I do not know how any honest, decent person would not feel the same way.

I tell you, I feel like I am Hispanic. I am the chairman of the Hispanic task force on our side. For 13 years I have done that, long before some believe the Hispanic people in this country were a political force. I have fought for Hispanics every day I have been in the Senate. I particularly resent this treatment. I particularly resent the fishing expeditions where they cannot come up with one reason for even wanting these privileged papers. They have not listed a specific reason. They just say: Let us cast our line out there and let us see what we can find because we do not have anything on this man and we do not want him on the court because he is appointed by a Republican President and he is a Republican himself, and he is a conservative, a Hispanic. We do not want those kinds on the Federal bench.

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

Mr. Hatch: That, in essence, is what this argument is all about.

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

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

Mr. Reid: Is the Senator aware that on August 24, 1987, John Bolton, the Republican Assistant Attorney General, wrote a letter to Chairman Biden, among other things saying:

Accordingly, we have decided to take this step of providing the committee access to responsive materials we currently possess except those privileged documents specifically described. Of course, our decision to produce these documents does not constitute a waiver of any future claims of privilege concerning other documents the committee requests or waiver of any claim over these documents with respect to the entities or persons other than the Judiciary Committee.

Mr. Hatch: Of course, Senator Leahy put that in the Record I believe on February 25. Let me answer. This is a letter to Senator Thurmond.

Mr. Reid: Senator Biden.

Mr. Hatch: The one I have is a letter to Senator Thurmond. I also have attached to that two letters to Senator Biden. I have a number of letters here. I understand all of these letters the distinguished ranking member of the committee has put in the Record.

I point out to the distinguished Senator from Nevada that all of these letters are from the Office of Legal Counsel, not the Solicitor General's Office. They refer to--

Mr. Reid: But the Senator would agree the Attorney General released memos from the Solicitor General's Office in this letter. That is what it does. That is what the letter is about. Is the Senator aware of that point?

Mr. Hatch: These were responses to specific allegations--let me ask the Senator on my time, without losing my right to the floor, is the Senator aware of any specific allegations justifying the request for these records from the Solicitor General? Just answer my question. Are you aware of any specific allegations that need to be investigated from the Solicitor General's Office? If you are, I would like to know about it rather than have a fishing expedition trying to find something to murder this guy with.

Mr. Reid: The Senator from Utah made a statement on this floor this evening that it is illegal to release documents relating to memos in the Solicitor General's Office, and the record is very clear it has been done before on more than one occasion.

Mr. Hatch: Mr. President, if he has a question, I will be happy to take it. Gratuitous comments are not fair.

Mr. Reid: You asked me a question, and I was answering.

Mr. Hatch: I will go with that. The fact is I have not said that. At least I do not believe I said that. I said that these documents are not given. I said we have never given appeal recommendations and certiorari recommendations that were fairly requested except in cases where there were specific allegations, and then in a very limited way.

These letters are responding to Senator Biden's August 6 request for certain additional materials referred to in the documents from the Office of Legal Counsel, and I have not said that the Attorney General will act illegally if the Attorney General gives up documents. I suppose the Attorney General can theoretically do anything he wants to do, but he will not be acting responsibly if he gives up privileged documents that should not be given up by the executive branch.

I suspect and said earlier theoretically I suppose the Attorney General can do that if he wants to. He would not be responsible to do it under these circumstances.

Mr. Reid: That is what Senator Durbin and I have been trying to show all night. It has been done in the past.

Mr. Hatch: Let me just make another comment. Is it your desire here to trip me up in a multihour debate, or is it your desire to really find out something about Miguel Estrada you specifically know exists? If that is it, maybe I can accommodate you, I don't know. But the fact is, this is just a job of who got whom. I gotcha, Miguel Estrada, because I got a complaint that there may be in thousand of documents something that might destroy his nomination.

Am I on trial here? Is that what the Senator is doing? I will be happy to say to the Senator, I do make mistakes sometimes. But let me tell you something. Give me a reason that really is specific why the Justice Department should give you access to these thousands of pages of privileged documents that they have never given before except in specific requests and then in this case, the Office of Legal Counsel matters, not the Solicitor General.

Come on, let's be fair here. Is there a substantive reason for all of this blather on the Senate floor? Is there a substantive reason? Do we have a substantive reason to obstruct this man? Do we have a substantive reason? I have not seen an argument against him since the debate began other than the phony argument that he did not answer the questions, which the distinguished Senator from Tennessee, Senator Alexander, blew away tonight.

I think that has been blown away by other Senators as well. My gosh, what is fair is fair.

Mr. Reid: Could I respond to the question the Senator asked me without losing his right to the floor?

Mr. Hatch: I will recognize the Senator from North Carolina right now--excuse me, South Carolina.

Mr. Reid: The Senator asked me a question.

Mr. Hatch: I did not ask the Senator a question. Well, I suppose I did, theoretically.

I would like the Senator to think about the answer.

The President pro tempore: Who is seeking recognition?

Mr. Graham of South Carolina: Will the Senator from Utah yield for a question?

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

Mr. Graham of South Carolina: Mr. President, it is fair to say, like many other States, this nomination has not gone unnoticed by the media in my State of South Carolina--I have been called worse things than being from North Carolina. Both the Spartanburg Herald Journal and Post & Courier of Charleston have called for an end to this filibuster, and there is one aspect of the Spartanburg Herald Journal editorial I would like to ask the senior Senator from Utah about, and it goes as follows:

No reasonable Congress ought to be seeking such material--

And talking about legal memorandum written by a lawyer to a client--

as a letter from all living former Solicitors General attests. . . . They don't want those lawyers to be worrying about how their memos will impact future attempts to win judicial seats.

Does the Senator from Utah agree that if we start taking memos prepared by lawyers to their clients and bring those memos out in a fashion as to whether or not a person is qualified to serve one day in the future in the judiciary that it may change work product and it will be very bad for the Justice Department lawyers to have to be thinking about those things? Does the Senator agree this is a road none of us should want to go down?

Mr. Hatch: Seven former Solicitors General agree, four of whom are Democrats and three of whom he served with, three of whom understand whatever he did, why don't my colleagues ask them? I am sure they have in their quest to find some fish around here, and apparently they do not have any specific reasons for asking for this huge fishing expedition. But even if they did, what responsible attorney would give up his work product?

Now, let's suggest there is a Democrat President and one of our body is invited to be a member of the Circuit Court of Appeals for the District of Columbia, he decides he is sick and tired of the Senate, mainly because of obstructive tactics like this, I am sure, and we, as Republicans, then say we are not going to let him serve until we get all of his internal memoranda while he was a Senator. Do my colleagues think he is going to give that up? He would be nuts, because we would then be able to find all kinds of rotten fish in there to use against him or her. Do my colleagues see the point?

I hope our side would not stoop to that level, and I would fight to make sure we did not stoop to that level. So I ask, where are the specific allegations? They must have talked to at least their four Democrat former Solicitors General and said, is there not something there? By the way, those Solicitors General are for Miguel Estrada, at least have said that he handled himself very well and is ethically responsible, and his performance recommendations that they signed are the highest form of recommendations. They have all said he has done that in the highest sense of the Solicitor General's Office.

So, yes, the Senator is absolutely right. Seven former Solicitors General, four of whom are Democrats, three of whom he worked with in the Clinton administration and the Bush administration.

I would like to share with my colleagues an editorial cartoon which really sums it up well. It shows one of two Democrat caricatures stating:

The makeup of the judicial system should look like America, including blacks, Asians and Latinos.

Then the other asks: What about Estrada? These are two donkeys.

The other tellingly replies: That is different. He is not a liberal.

That is what this is all about. He is not a liberal. How could we have the temerity to choose a Hispanic nominee for the Circuit Court of Appeals for the District of Columbia? How could this President do this since he is not a liberal? That is what is involved.

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

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

Mr. Sessions: Mr. President, I will ask the Senator from Utah--I first would say how effective I think he has been tonight in indicating there are no reasons to oppose this nomination. I would note that the Mobile Register in my State has a fine editorial page, and they wrote:

All precedent indicates that a filibuster against judicial nominations for any reason but one concerning the nominee's very integrity is essentially dirty pool.

My question is: Has this nominee's integrity ever been questioned and does the Senator agree that this filibuster is dirty pool?

Mr. Hatch: This nominee's integrity has never been in question. I think my colleagues on the other side have acknowledged that. His integrity is totally intact. He is an honest, decent, honorable man who, in spite of a disability, a speech impediment, has risen to the top of the legal world, who is a partner in one of the major law firms in this country, who has the highest rating of the American Bar Association, unanimous, well-qualified rating. This man's integrity has never been called into question, to my knowledge, and I would be very ashamed of anybody who tried to call his integrity into question.

I have been very passionate this evening, and I apologize to my colleagues if I have offended anybody, but I have to say this is really important stuff. We cannot allow this type of treatment to go on. We are talking about a breakdown in the Senate, if a filibuster for the first time in history is maintained to defeat a nominee, any nominee, let alone the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia. I have not wanted to antagonize or offend any of my colleagues, and I apologize if I have, but what I have said tonight is true.

I have to say, I am really disturbed by the obstructive tactics that are being used. I would be equally upset if they were used on our side, but they have not ever been used in this fashion on our side.

I see the majority leader is in the Chamber, but first I forgot to put these letters in earlier, my letter to Senators Leahy and Schumer, with regard to the Easterbrook document. I ask unanimous consent that they be printed in the Record.

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

Mr. Reid: Mr. President, I have a unanimous consent request.

Mr. Frist addressed the Chair.

Mr. Reid: I have a unanimous consent to make and ask if the majority leader would yield for that unanimous consent request.

Mr. Frist addressed the Chair.

The President pro tempore: The majority leader has the floor.

Mr. Reid: Of course he does.

Mr. Frist: Mr. President, as we have for the past 3 weeks, my Republican colleagues, as we can see from the Chamber now, and I have stood ready to debate the Estrada nomination. Few of our Democrat colleagues have been present tonight, although we clearly stand ready to vote on this nomination. It appears that most of our colleagues in the minority are prepared neither to debate nor to vote on Miguel Estrada. Tonight my colleagues have shed light on the immense reaction from newspapers all over the country to the obstruction of this nomination. Tonight my colleagues have shed light on the fact that the peculiar and truly unprecedented obstruction the minority is pursuing is founded upon a double standard which is being applied to this particular nominee. Tonight we have made clear once again that obstruction is being played out in the Senate by a minority that appears far from the mainstream of opinion throughout this country.

I ask unanimous consent that the vote occur on the confirmation of the nomination of Miguel Estrada at midnight tonight, provided further that the time between now and then be equally divided between the chairman and ranking member or their designees, and that at midnight the Senate proceed to a vote on the confirmation of the nomination with no intervening action or debate.

Mr. Daschele: Mr. President, I ask unanimous consent that the request made by the majority leader be modified to include that the Justice Department provide the requested documents relative to Mr. Estrada's Government service, first requested in May of 2001; that the nominee then appear before the Judiciary Committee to answer the questions which he failed to answer in his confirmation hearing, and any additional questions that may arise from such documents.

Mr. Frist: Reserving the right to object to that request for modification, let me cite a sample of editorials and what they say about my distinguished friend's request with regard to these memoranda. Just a couple.

From the Redding Record Searchlight in California from February 15: The administration won't hand over memos he wrote when he was in the Solicitor General's Office, say the Senate Democrats. It apparently does not matter to them that publicizing them could rob future memos of their candor and that every former Solicitor General of either party has said the Democrats seek too much.

Just one other from the Detroit News, February 11, 2003: Democrats also demanded that he produce his memos and recommendations while he was in the Solicitor General's Office, which had never been done for any other candidate who had been an assistant in that office. The demand was rejected not only by Estrada but by every former Solicitor General still living, including those who served Democratic Presidents.

I reject the request for modification.

Mr. Daschele: Then I object, as well.

The President pro tempore: The objection is heard.

Mr. Frist: As I said, tonight my colleagues have addressed all the many obstacles that have been put forward by the minority one by one by one by one through a series of questions handled so ably by our chairman of the Judiciary Committee, a nomination that the President of the United States sent to this Senate 2 years ago. Thus, I modify my request so that each Member on the other side of the aisle would be permitted to speak for up to 1 hour on the nomination prior to a vote.

The President pro tempore: Is there objection?

Mr. Daschele: Mr. President, I again ask unanimous consent that the request made by the majority leader be modified to allow for the documents requested by the Judiciary Committee members be provided as a part of the hearing record and that additional questions proposed by Judiciary Committee members be included in the Record at that time.

Mr. Frist: Mr. President, in response to the motion, let me cite another sample editorial. Again, it has been fascinating to watch the editorials over the last 2 weeks.

The President pro tempore: Is there an objection?

Mr. Daschele: Mr. President, I will ask for regular order. We can debate this if the majority leader wishes, but this is a unanimous consent request.

The President pro tempore: Is there an objection?

Mr. Frist: Mr. President, I object to the request for the modification.

Mr. President, I have tried, as you can see, on numerous occasions to reach an agreement for something very simple, and that is an up-or-down vote on this qualified nominee. Once again, there has been an objection from the other side of the aisle. It is time to allow the Senate to work its will on this nomination, the will of the Senate.

We are here, as you can see, ready to vote.

Mr. Daschele: I was under the impression I made the objection, but of course if I did not, I do it again.

The President pro tempore: The objection is heard.

Mr. Frist: I suggest the absence of a quorum.

The President pro tempore: The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll, and the following Senators entered the Chamber and answered to their names:

Quorum No. 2 Ex.
Allard	Bayh	Daschle	Dorgan	Durbin
Frist	Hutchison	Leahy	Lugar	Pryor
Reid

The President pro tempore: A quorum is not present. The clerk will call the names of absent Senators.

The assistant legislative clerk resumed the call of the roll.

Mr. Frist: I move that the Sergeant at Arms be instructed to request the attendance of absent Senators, and I ask for the yeas and nays.

The President pro tempore: Is there a sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

The President pro tempore: The question is on agreeing to the motion of the Senator from Tennessee. The yeas and nays were ordered, and the clerk will call the roll.

The assistant legislative clerk called the roll.

Mr. Frist: I announce that the Senator from Rhode Island (Mr. Chafee), the Senator from Nebraska (Mr. Hager), and the Senator from Kentucky (Mr. McConnell) are necessarily absent.

Mr. Reid: I announce that the Senator from Delaware (Mr. Biden), the Senator from New Mexico (Mr. Bingaman), the Senator from West Viginia (Mr. Byrd), the Senator from Delaware (Mr. Carper), the Senator from North Dakota (Mr. Conrad), the Senator from North Carolina (Mr. Edwards), the Senator from California (Mr. Feinstein), the Senator from Florida (Mr. Graham), the Senator from Iowa (Mr. Harkin), the Senator from South Carolina (Mr. Hollings), the Senator from Hawaii (Mr. Inouye), the Senator from Vermont (Mr. Jeffords), the Senator from South Dakota (Mr. Johnson), the Senator from Massachusetts (Mr. Kennedy), the Senator from Massachusetts (Mr. Kerry), the Senator from Louisiana (Mr. Landrieu), the Senator from New Jersey (Mr. Lautenberg), the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland (Ms. Mikulski), the Senator from Rhode Island (Mr. Reed), the Senator from West Virginia (Mr. Rockefeller), the Senator from Maryland (Mr. Sarbanes), and the Senator from Oregon (Mr. Wyden) are necessarily absent

The President pro tempore: Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 73, nays 1, as follows:

Rollcall Vote No. 36 Ex.
Yeas--73
Akaka	Alexander	Allard	Allen	Baucus
Bayh	Bennett	Bond	Boxer	Brownback
Bunning	Burns	Campbell	Cantwell	Chambliss
Clinton	Cochran	Coleman	Collins	Cornyn
Corzine	Craig	Crapo	Daschle	Dayton
DeWine	Dodd	Dole	Domenici	Dorgan
Durbin	Ensign	Enzi	Feingold	Fitzgerald
Frist	Graham (SC)	Grassley	Gregg	Hatch
Hutchison	Inhofe	Kohl	Kyl	Leahy
Levin	Lincoln	Lott	Lugar	McCain
Miller	Murkowski	Murray	Nelson (FL)	Nelson (NE)
Nickles	Pryor	Reid	Roberts	Santorum
Schumer	Sessions	Shelby	Smith	Snowe
Specter	Stabenow	Stevens	Sununu	Talent
Thomas	Voinovich	Warner
Nays--1
Breaux
NOT VOTING--26
Biden	Bingaman	Byrd	Carper	Chafee
Conrad	Edwards	Feinstein	Graham (FL)	Hagel
Harkin	Hollings	Inouye	Jeffords	Johnson
Kennedy	Kerry	Landrieu	Lautenberg	Lieberman
McConnell	Mikulski	Reed	Rockefeller	Sarbanes
Wyden

The motion was agreed to.

The President pro tempore: The majority leader.

Mr. Frist: Mr. President, once again, I state that we are ready to vote on this nomination tonight. As you can see, the nomination has been pending in the Senate since February 5. We have had speech after speech after speech on this qualified nomination. There has been ample time for both sides to make their case. As has been said on the floor by the minority whip, everything has been said.

Mr. President, I now ask unanimous consent that the vote occur on the confirmation of the nomination of Miguel Estrada at 6 p.m. on Monday.

The President pro tempore: Is there objection?

Mr. Daschele: Mr. President, reserving the right to object, I ask unanimous consent documents requested by members of the Judiciary Committee, as well as answers requested by Members to Mr. Estrada, be made part of the request as well.

The President pro tempore: Is there objection?

Mr. Frist: Mr. President, I object to the requested modification.

Mr. Daschele: Mr. President, then I object as well.

The President pro tempore: Objection is heard.

Mr. Frist: Mr. President, I suggest the absence of a quorum.

The President pro tempore: The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll and the following Senators entered the Chamber and answered to their names.

Quorum No. 3 Ex.
Baucus	Bayh	Boxer	Breaux	Clinton
Corzine	Daschle	Durbin	Feingold	Feinstein
Frist	Leahy	Nelson (FL)	Pryor

The Presiding Officer (Mr. SMITH): A quorum is not present.

Mr. Frist: Mr. President, I move that the Sergeant at Arms be instructed to request the attendance of absent Senators, and I ask for the yeas and nays on the motion.

The Presiding officer: Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

The Presiding officer: The question is on agreeing to the motion of the majority leader. The yeas and nays are ordered and the clerk will call the roll.

The legislative clerk called the roll.

Mr. Frist: I announce that the Senator from Rhode Island (Mr. Chafee), the Senator from Nebraska (Mr. Hagel), the Senator from Mississippi (Mr. Lott), and the Senator from Kentucky (Mr. McConnell) are necessarily absent.

Mr. Reid: I announce that the Senator from Delaware (Mr. Biden), the Senator from New Mexico (Mr. Bingaman), the Senator from West Virginia (Mr. Byrd), the Senator from Delaware (Mr. Carper), the Senator from North Dakota (Mr. Conrad), the Senator from North Carolina (Mr. Edwards), the Senator from Florida (Mr. Graham), the Senator from Iowa (Mr. Harkin), the Senator from Hawaii (Mr. Inouye), the Senator from Vermont (Mr. Jeffords), the Senator from South Dakota (Mr. Johnson), the Senator from Massachusetts (Mr. Kennedy), the Senator from Massachusetts (Mr. Kerry), the Senator from Louisiana (Ms. Landrieu), the Senator from New Jersey (Mr. Lautenberg), the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland (Ms. Mikulski), the Senator from Rhode Island (Mr. Reed), the Senator from West Virginia (Mr. Rockefeller), the Senator from Maryland (Mr. Sarbanes) and the Senator from Oregon (Mr. Wyden) are necessarily absent.

The Presiding officer: Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 74, nays 1, as follows:

Rollcall Vote No. 37 Ex.
YEAS--74
Akaka	Alexander	Allard	Allen	Baucus
Bayh	Bennett	Bond	Boxer	Brownback
Bunning	Burns	Campbell	Cantwell	Chambliss
Clinton	Cochran	Coleman	Collins	Cornyn
Corzine	Craig	Crapo	Daschle	Dayton
DeWine	Dodd	Dole	Domenici	Dorgan
Durbin	Ensign	Enzi	Feingold	Feinstein
Fitzgerald	Frist	Graham (SC)	Grassley	Gregg
Hatch	Hollings	Hutchison	Inhofe	Kohl
Kyl	Leahy	Levin	Lincoln	Lugar
McCain	Miller	Murkowski	Murray	Nelson (FL)
Nelson (NE)	Nickles	Pryor	Reid	Roberts
Santorum	Schumer	Sessions	Shelby	Smith
Snowe	Specter	Stabenow	Stevens	Sununu
Talent	Thomas	Voinovich	Warner
Nays--1
Breaux
NOT VOTING--25
Biden	Bingaman	Byrd	Carper	Chafee
Conrad	Edwards	Graham (FL)	Hagel	Harkin
Inouye	Jeffords	Johnson	Kennedy	Kerry
Landrieu	Lautenberg	Lieberman	Lott	McConnell
Mikulski	Reed	Rockefeller	Sarbanes	Wyden

The motion was agreed to.

The Presiding officer: The majority leader.

Mr. Frist: Mr. President, once again we were unable to reach an agreement on the vote for the confirmation of the nomination of Miguel Estrada. I want to thank all of the Members who have participated tonight in what is an important debate. We have had constructive debate through the evening and Members have made themselves available to vote on the Estrada nomination. Unfortunately, given the objections from the other side of the aisle, we will not be allowed to vote on this nomination at this time. Therefore, there will be no further rollcall votes tonight.

I know a number of my colleagues have statements they wish to make, and I encourage them to remain in the Chamber and continue to debate this evening, even though the hour is late. I do want to notify our colleagues that we will convene at noon tomorrow and will continue to debate the Estrada nomination at that time.

The Presiding officer: The Senator from Colorado.

Mr. Allard: Mr. President, anybody who might have been watching the debate this evening has to come to the realization that we are in a filibuster. Personally, I am very concerned about the kind of precedent it is going to set for this body as we move forward in future years. I think that forcing 60 votes in order to get to a vote up or down on a judicial nominee is a very difficult position to put this body in. I am disappointed that we were not able to get a straight up-or-down vote this evening on Miguel Estrada to the Court of Appeals for the District of Columbia.

I realize that watching the Senate on television is probably not the most popular pastime for many Americans, but it should come as no surprise to any of my colleagues or students of Congress that the current debate and unprecedented filibuster over the confirmation of Miguel Estrada, President George W. Bush's nominee to the DC Circuit Court, has citizens from across the country tuning in and paying close attention. From California to Colorado to New York and beyond, Americans have closely watched the DC Circuit Court confirmation, because they realize that justice is not issued by an individual court or judge, but rather collectively, the integrity of the law depending on the ability of each court to function within the whole.

In the midst of the Democrat-led filibuster, the Senate finds its business completely disrupted, unable to proceed to other important issues such as prescription drugs and economic relief. The Constitution commands that Federal judges are to be appointed with the advice and consent of this body. Yet today, thanks to the obstructionist tactics of the Democratic leadership, we face a very real possibility of shifting this authority in a manner the Framers never intended, fundamentally altering the amount of votes required to confirm judicial nominations.

It is clear that the obstructionists are not interested in an up-or- down vote on this nomination. Instead, they prefer to hold the majority and the American people hostage to an unacceptable game of entrenchment and politics. Their reasons to prolong debate may be enough to justify a vote against Miguel Estrada, but I am still waiting for a reason that is sufficient to deny a vote entirely.

Television programs, talk show radio, and newspaper editorials across the United States are demanding that the Democrats allow a vote on Miguel Estrada, that they proceed to a simple up-or-down vote.

The media is simply echoing the statement of an outraged public. They have rejected this tyranny of the minority, and their demand for a vote must be acknowledged. The call for a vote has reached the editorial pages of both major newspapers in Colorado. The Rocky Mountain News, in an editorial entitled "Democrats Turn Ugly on Estrada," states the filibuster is irresponsible. Their editorial also undermines many of the various arguments that are being used to prolong the confirmation, saying the arguments that we do not know enough about Miguel Estrada is implausible because he has a well-known and rather amazing life story. Estrada immigrated to this country from Honduras, graduated with honors at Columbia College, and was editor of the Law Review at Harvard Law School. Then he was a clerk to a Supreme Court Justice and argued before the Supreme Court 15 times. He received the highest possible recommendation of the American Bar Association.

The editorial concludes:

The Democrats have no excuse . . . keeping others from voting their consciences on this particular matter is simply out of line.

I ask unanimous consent that the article by the Rocky Mountain News be printed in the Record.

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

Mr. Allard: The News is not the only newspaper to decry the treatment of the President's nominee. The Denver Post, which, by the way, endorsed Al Gore over George W. Bush for President, in an article captioned, "Give Estrada His Day in Court," states those Senators who think Estrada is too conservative should vote no. Those who think he was unresponsive should vote no. The key point is there should be a vote. To do otherwise, to use a filibuster, is to impose a new requirement that judges be confirmed by a supermajority.

The paper agrees the Constitution never intended such a requirement and that an up-or-down vote is in order.

I ask unanimous consent that the Denver Post editorial be printed in the Record.

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

Mr. Allard: Another article that appeared in the Denver Post was written by Al Knight, which states that if the obstructionists succeed, there will only be two kinds of nominees in a Republican administration: Those who can be opposed because they have said something suspect about a touchy topic, and known conservatives who have not said anything inappropriate. The second category can be opposed, however, precisely because they have not furnished their opponents with a basis for opposing their nomination. The article concludes that the Estrada filibuster is a lamentable departure from the past.

I ask unanimous consent that the Al Knight article be printed in the Record.

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

Mr. Allard: Mr. President, challenging times are at hand. While I believe a full and fair debate of Presidential nominees is of paramount importance, obstructing an up-or-down vote fails the public trust and is a disservice to our system of justice. The Senate must resist temptations to alter the basic tenets of the Constitution. Instead, the Senate must move forward with the business of the Nation and can start by voting on the nomination of Miguel Estrada.

Again, we ought to look at the chart and remind ourselves of the key point in the editorials. The Denver Post said: The key point is that there should be a vote. . . . A filibuster should play no part in the process.

The Rocky Mountain News says: The Democrats have no excuse for keeping others from voting their consciences on this particular matter. It is simply out of line.

I yield the floor.

The Presiding officer (Mr. Craig): The Senator From Alabama.

Mr. Sessions: Mr. President, I watched with great interest the debate tonight. Senator Hatch answered every question relating to this nominee. It reminds me of the times when I was a Federal prosecutor years ago. You would go through a contentious trial and the defendant attacked the prosecutor, would attack the police, and attack the witnesses. But at the end of the trial, the evidence would be clear and you would have a real fine moment to stand up and challenge the defendant to produce any credible evidence that would justify his position.

Senator Hatch repeatedly challenged our colleagues on the other side of the aisle. He urged them and pleaded with them to state a legitimate basis to reject this fine nominee, Miguel Estrada. They have failed to do so. They came up with the weakest, most pitiful, sorry explanation; that is, they want memorandums, every memorandum he ever wrote in the Justice Department.

That is so weak, so baseless, so wrong. That is something he cannot give. It is not within his power to give. And he should not do it if he had the power to do so. The memorandums he produced for the Department of Justice belong to the Solicitor General, to the Department of Justice, to the people of the United States. The United States of America was his client. He has no ability whatsoever to produce those documents.

He said they can have them as far as he is concerned. But as a good lawyer, he knows the Department of Justice should not and must not produce those documents. And they have never done that absent a specific showing of a specialized need.

It is sad to me to see us get to this point, to see this kind of obstructionism. This is what we have seen. It is not fair to this nominee. It is not fair to the judicial system.

I call on my colleagues across the aisle, and I urge them not to make this historic step, not to head down this road of filibuster. It is something we have not done before, we should not do now, and by all means we should not do this to a nominee who has not the slightest bit of a challenge to his integrity, not the slightest challenge to his legal ability, not any objection by the American Bar Association. In fact, they rated him the highest possible rating they can give and unanimously gave him that rating. It is really a sad day.

If Senator Hatch was frustrated, so are a lot of us. What has been going on here is not right. It is not right. We need to stop it. The Constitution of the United States provides that confirmations are advice and consent of the Senate, article II, section 2, by a majority vote. That is what it has always been. Now we are trying to convert that to a supermajority of 60 votes. It is something we have not done before.

They say: You held up President Clinton's nominee. Let me state plainly, we did not unfairly hold up any nominees. We confirmed, under President Clinton's tenure as President, 377 of his nominees. One of those nominees was voted down on this floor; 377 confirmed. Not once was there a filibuster held. In fact, when people talked about that a few times, Senator Hatch said no, that is not the right thing to do. We ought not to filibuster. That did not occur. We went on anyway and confirmed those judges. There were only 41 nominees left when President Clinton left office of those he nominated who were not confirmed; whereas when former President Bush left office there were 54 nominees unconfirmed by the Democratic Congress. So compared to those two Congresses, there is no doubt that the Republican Congress under Senator Hatch as chairman did a much more favorable job to President Clinton's nominees than the Democratic Senate did to President Bush's nominees. That cannot be disputed.

It is amazing we are carrying on and suggest otherwise. Sure, the Senate is not a rubberstamp. Sure, it has a right to ask questions and demand information that is legitimate. But they are not required and should not ask for information that is not legitimate.

How did we get into this circumstance? How did we get to this point where the ground rules have changed, that we are into an obstructionist tactic, an unfair procedure? What happened? After the last election when President Bush was elected, the New York Times reported that the Democrat majority, the Democratic Senators at that time early in President Bush's administration had a retreat at some location unknown to me, and they heard at that time from three liberal law professors, Lawrence Tribe, Cass Sunstein, and Marcia Greenburger. These liberal professors at this private retreat told the Democrats at that time, they should change the ground rules for nominations. They should ratchet up the pressure and they should alter the historic rules of courtesy, the historic presumptions in the Senate, and they should change how nominees are treated. They said: You have the power to do it. Do it, Democrats. Stand up and block these nominees. Do not accept the nominees from President Bush, like this Republican Senate accepted President Clinton's nominees. Fight every step of the way. That is apparently what has happened.

Shortly after that, when the majority in the Senate changed, I served on the Administrative Oversight and the Courts subcommittee. Senator Schumer chaired that subcommittee. He held hearings. He held hearings to argue the point that the burden of proof for a confirmation of a judge should change and it ought to be on the judge to prove he is qualified. That has never been done before in the history of this country. We had Lloyd Cutler, former Counsel to the White House of Democrat Presidents. We had others testify. They testified that it would be wrong to shift the burden to the nominee, it was not the right thing to do. Then he had hearings to say we ought to just consider your politics, your ideology, as he said, and we can consider somebody's politics, and we can reject them if we do not agree politically.

If you happen to be pro-life, you are out. Pro-life, no. No such judge gets confirmed here, I suppose that means. So we went through those hearings. Lloyd Cutler and Boyden Gray headed up a national commission that studied this and the commission rejected this contention. They both said this would not be the right thing to do; they said no, this would politicize the judiciary.

Most of the people who serve here who are lawyers may not regularly have practiced law. I had the opportunity and the honor for almost 12 years to represent the United States of America as U.S. attorney, practicing in Federal court before Federal judges. I practiced before Democratic judges. I practiced before Republican judges. It did not matter to me which one it was. You presented the law and the facts consistently and you would expect them to rule justly. That is what we try to do.

We knew when we researched the law that we were going to win--we thought. If we had the right law, we would expect to win. Politics does not enter into it. That is the ideal of American justice, that there is equal justice under law. It is on the Supreme Court wall here, on the facade of the Supreme Court across the street, "Equal Justice Under Law."

So I am really frustrated that we would suggest we ought to get into a person's politics.

Of course, with regard to Estrada, to my knowledge, he never campaigned for a candidate. To my knowledge, he has never run for office. It appears he is a Republican and he has conservative political views, but as he has explained, they do not affect his abilities and his decision-making process once he puts on that robe and gets in the courtroom. That is not the way he does business, and that is not the way a judge should do business.

I think we are doing something here that is quite historic and is very wrong.

I will say one more thing before I refer to some of the comments that were made earlier about Solicitor General memoranda. Remember, Miguel Estrada is a highly qualified nominee. He graduated magna cum laude from Columbia University after having come to this country at age 17 from Honduras. He went on to Harvard Law School. He finished at the top of his class there, magna cum laude, and was chosen an editor of the Harvard Law Review.

Those of us who are lawyers and those of us who know much about the legal business know that being an editor of a law review at a good law school is one of the highest honors a graduating senior can have. To be an editor of the prestigious Harvard Law Review is one of the great honors any student can have.

After graduating from college, he clerked for a Federal appellate judge in the Second Circuit Court of Appeals, one of the great courts of appeals in America. He did that, served his tenure there. Let me say, those are very competitive positions. You are not chosen to be a law clerk for a court of appeals judge or even a Federal district judge unless you have extraordinary ability and are perceived to be a person people can get along with, pleasant to work with, and have great ability. So he did that.

Remember, he is being nominated for a Federal court of appeals judge. He will do the very same work on the Court of Appeals for the DC Circuit as he would did at the Second Circuit Court of Appeals in New York, as he did there. So he has had great experience sitting at the right hand of a Federal circuit judge, helping him write the opinions dealing with the Federal issues that come before him. I think that is important.

After that, he became an assistant U.S. attorney in the Southern District of New York, a very prestigious U.S. attorney's office, the one in which Rudy Guiliani was U.S. Attorney and ran that office. By the way, Rudy Guiliani has written a very vigorous editorial supporting Miguel Estrada.

He performed superbly there and was taken to the Department of Justice. He was asked to serve as a deputy in the Solicitor General's Office of the United States Department of Justice. The Solicitor General is often referred to as the people's lawyer. The Solicitor General has been called the greatest lawyer's job in the world. The Solicitor General of the United States of America represents the United States of America in court before the Supreme Court of the United States of America. Most lawyers can think of no greater honor, nor can I, than to be able to represent the United States of America before America's greatest Court.

He served there. He came in the tail end of 1992, in the Bush administration, and stayed for 5 years in the Clinton administration. During that time the Clinton administration evaluated his performance. In every possible evaluation, they gave him the highest possible rating. It was not President Bush's administration, not some other Republican administration; the Clinton administration Department of Justice gave him the highest possible performance evaluation.

Then he left there and went to a great law firm, one of America's greatest law firms. He has argued 15 cases before the United States Supreme Court. Let me tell you, I asked a lawyer earlier tonight, we were sitting at a round table, and I said, How many lawyers in America do you think have argued 15 cases before the Supreme Court?

He said, You know, I bet they could all sit at this table. I suggest to you, you could count on your fingers the names of the practicing lawyers today, in practice today, who actually have argued that many cases. Arguing a case before the Supreme Court is a great honor. Very few people get selected. It is big time law business. Only the best are asked to do that. And he has done that 15 times.

That shows that in private practice he has the ability and the respect to carry on weighty matters before the Nation's highest Court.

So the American Bar Association comes along. They are asked to evaluate this nominee, to see how well the lawyers and bar members and all, evaluate his performance. They talk to lawyers who have practiced with him. They talk to the lawyers who have opposed him in his biggest cases. They talk to judges before whom he has practiced. They talk to lawyers for whom he has worked. And they ask people confidentially, also, to express their opinion if they know of anything that affects his integrity, legal ability, temperament, and those kinds of matters. They take it very seriously. They particularly take a court of appeals nomination very seriously.

So they did all that for Miguel Estrada. They checked his background. They probably talked to his law professors and the judges he worked for and lawyers he litigated against as well as with. They evaluated him, and 15 or so of them came together and voted, and they unanimously gave him their highest possible rating. This doesn't happen to most nominees. Far fewer than 50 percent of the nominees for this court get a "well qualified" rating. And even fewer get a unanimous vote of "well qualified" by the lawyers who evaluate them.

So then he came before the Senate. President Bush nominated him in May, 2 years ago. Quickly--by that time, the Democrats have taken back control of the Senate when Senator Jeffords switched parties. So they chaired the Judiciary Committee. They refused to give him a hearing. They had all his records and all his files. I am sure they were looking at him very closely because they heard he was a conservative Republican Hispanic, and somebody even said, You know, he might be a good Supreme Court nominee. He could be a real good nominee. Maybe we better beat this guy up a little bit.

As a matter of fact, the more I studied his record, I saw his testimony, I think he would be a great Supreme Court nominee. He has the background, the academics, the integrity, the judgment, the record of accomplishment that would make a great Supreme Court Justice. There is no doubt about it in my mind.

Whatever the reason is, they decided to block him, so they would not give him a hearing. Finally, after almost 2 years, a year and a half or so, they have a hearing. Remember now, they conduct the hearing. Senator Leahy is the chairman of the committee. Senator Schumer presided over the hearing. It went almost all day long. They could have had 3 days worth of hearings if they chose. They got to ask any questions they wanted to. He answered question after question after question. I thought he answered the questions brilliantly. I thought it was interesting tonight that Lamar Alexander, Senator Alexander, went back and read his answers. Far from agreeing with those on the other side who said he did not answer the questions, he thought he answered them brilliantly. He thought he answered them exactly the way a judge should answer them. And he did.

I saw him do that, and he was a great witness. He does have a speech impediment, but he handled it with such grace. He testified with such smoothness and so much judgment and wisdom. I remember distinctly him being asked. You know President Bush said he wanted a strict constructionist on the bench.

That is a layman's term for a judge who follows the law and doesn't make up law--not an activist the way people talk around the country.

They asked Estrada: Are you a strict constructionist? He said: Well, I wouldn't say that. He said: I would call myself a fair constructionist. I think you should give a fair meaning to the language of the statute and Constitution that we deal with. That is what I will try to do.

They later asked him written questions how he would evaluate Justices on the Supreme Court--all of them. Some of them are liberal and some are conservative. He said in his view they all try to be fair constructionists and he respects all of them but may differ on a few things but fundamentally they are in agreement.

So we had the hearing. He testified well. There were no complaints against him. There were suggestions that he had acted in a politically hostile or partisan way. There was no suggestion that he had any lack of integrity. In fact, his integrity has never been challenged. They never challenged his legal ability or scholarship.

They said he didn't have enough experience. That is just fundamentally false. I don't see how anybody on this floor can stand up and say he is not qualified by background and training and experience to be a court of appeals judge. That is ludicrous. He has one of the finest backgrounds any person I have seen for a court of appeals judge. He clerked for a court of appeals judge. He clerked for Anthony Kennedy on the Supreme Court, which I failed to mention, and he served in the Solicitor General's Office and the appellate division of the Attorney General's Office of the Southern District of New York--unbelievably good experience for this kind of a position.

So now, tonight, when we moved to go forward and end the obstruction and just vote, what kind of objection do we hear? Well, the objection was he didn't turn over his memoranda when he was an attorney in the Solicitor General's Office. He wrote internal memoranda, and we want to see what he said. He might have said something that we can get him on. So, Mr. Estrada, you won't turn over your memos, we will not confirm you.

Let us be truthful about this thing. They are not his memos. He has no authority whatsoever to turn over the Department of Justice memoranda--absolutely none. The Department of Justice says these are work products of the Department of Justice. Seven former Solicitors General--three of them Democratic Solicitors General--have said they must not be turned over; it is the wrong thing to do; we do not need to encroach on the executive branch's deliberating procedures. We don't need to chill free debate in the Solicitor General's Office. They must not be turned over. The Attorney General is not going to turn them over. So, therefore, they say: "We gotcha." OK. Now we have an excuse not to vote for Estrada.

What is the excuse? He won't turn over the memoranda? They are not his to turn over. They are the Department of Justice memos. It is an unfair charge. He is being treated unfairly. The burden of proof is being put on him. They are accusing him of some ideological bent, but they never explain what it is they are unhappy with. Not one political, not one philosophical, not one theological position have I heard them criticize him for. It is absolutely baseless--just absolutely wrong to say he must turn over those memoranda. They are not his to turn over. He can't turn them over, and the Attorney General would violate high standards of ethics if he did. Oh, well, they said, you know, they turned them over for other people. You heard that argument.

Let me mention this first. Let us stop and slow down a minute and talk about some of the people who served as Solicitor General under Democratic administrations. The Solicitor General is a great lawyer position, as I stated before. But also the Solicitor General must be compatible with the President's philosophy and must advocate the views, insofar as he is able, that the President supports. The Solicitors General are attuned to their President.

Let me read what some Democratic Solicitors General said about Miguel Estrada.

Seth Waxman, former Solicitor General, Democrat, well respected throughout the country said:

During the time Mr. Estrada and I worked together--

They worked together when he was Solicitor General--

he was a model of professionalism and competence.

And he added:

In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his political views.

What a compliment from a Democratic Solicitor General for whom he worked.

By the way, they want these memoranda. To whom are they written? They were written to Seth Waxman, Democratic Solicitor General under President Clinton.

What does Mr. Waxman say, Mr. Clinton's Attorney General?

In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views. During the time Mr. Estrada and I worked together he was a model of professionalism and competence.

I am telling you that there is no basis to object to this nominee.

Drew Days, another former Solicitor General under a Democratic administration and an African American, he wrote in support of Mr. Estrada:

I think he is a superb lawyer.

When he worked for Drew Days, Mr. Days' signature was on his performance reviews giving Mr. Estrada the highest possible rating each year--the outstanding rating in every category on the evaluation sheet.

In the Department of Justice where I served, you have an evaluation form. Every supervisor has to fill it out and you can give them the rating. The highest rating is outstanding. In every category of rating Mr. Estrada got "outstanding" in the Clinton Department of Justice.

How can this man be an extreme person, some stealth candidate out of the right wing of America who can't be trusted on the bench? That is bogus and false and wrong. It is just unfair.

Robert Litt in the Department of Justice, former Deputy Assistant Attorney General, was considered by most people to be one of the more partisan members of the Department of Justice, a capable attorney, however, and certainly a Democrat. Mr. Litt said this:

I have never felt that the arguments he made were in any way outside the scope of legitimate legal analysis.

Randolph Moss, former Assistant Attorney General, another Democrat:

He has a near encyclopedic knowledge of the law.

Isn't that wonderful? Think of it.

He has a near encyclopedic knowledge of the law, a powerful intellect and an ability to bring coherence to even the most complicated legal document.

I am telling you that is what a judge does. A judge must be able to bring coherence to complex legal matters to get to the heart of the matter, to get it to the simplest bases and make a just decision. I think that is an extremely high compliment.

I don't know what the Democratic Senators would look for in this nominee. It is beyond my comprehension how this man who is so qualified and with such a compelling life story would be blocked here. It really is stunning to me.

I have a lot of other things that I could say at this time. I will not go into all of them. I want to make the point about the certain memoranda that have been produced or have leaked out of the Department of Justice with regard to previous nominees.

Now, first, even if a prior Attorney General, at some moment of weakness, unwisely just produced all the memoranda and the work product of some nominee, that would not mean, to me, that we ought now to continue to violate an absolutely clear principle.

But, as I have seen the facts--and we have looked at them--not one Attorney General in history has responded to the fishing expedition set forth here. This is clearly a fishing expedition. They don't say there is one thing they want for a specific reason. What do they say? They say: We want everything you ever wrote. And it is not going to happen. It is not going to happen--nada.

What about Easterbrook? They said they found a two-page memo he wrote when he was in the Department of Justice. Well, the official record of the Easterbrook hearing contains no reference to this document at all. The Department of Justice cannot find any records they ever authorized releasing this document. I am not sure how the people on the other side got it. The Justice Department said they did not release it. So something is fishy about that fishing expedition.

As for the documents on Robert Bork, I was here, and one of my colleagues across the aisle said: Oh, the documents have been given before. And he went on and on. He did not mention Judge Bork's name, and he waved around this document, that he was going to introduce it into the Record.

I have been in courtrooms a little bit. He said he was going to introduce it, but he never did. So I said: Are you going to introduce it into the Record? He said: Yes, yes, he would. So he introduced it into the Record. And I went and got it. I like to read these things.

Well, some can still remember--I don't know if the Presiding Officer was here when the Bork matter was before this body, but I think he was here. He remembers some of the intensity of the debate over the Bork matter.

He was the then-Solicitor General. You had the Attorney General and the deputy, and they would not fire Archibald Cox, the special prosecutor. The Attorney General quit, and the Deputy Attorney General quit, and it fell to Robert Bork; he fired Archibald Cox on behalf of President Nixon. There were all kinds of allegations that there were secret agreements and that Bork had done all kinds of corrupt things. And it was at the height of Watergate, so they demanded all kinds of documents, but they were specific.

Look, this is the document request. They wanted documents generated during the period from 1972 through 1974--not every year he was there-- and constituting, describing, referring or relating in whole or in part to the so-called Watergate affair.

Well, people were concerned about Watergate. They were alleging everybody in the Government was a crook. So Bork was in there, and he fired Archibald Cox. They had some specific reasons, and they got some of these documents. I don't think they got them all. They wanted any communications between Robert Bork and any person or entity relating in whole or in part to the Office of Watergate Special Prosecution Force.

They wanted any documents related to the dismissal of Archibald Cox, the abolition of the Office of Watergate Special Prosecution Force, and so on, the designation of Leon Jaworski as Watergate Special Prosecutor, the enforcement of the subpoena at issue in Nixon v. Sirica, and those kinds of matters.

So that is a specific request. At least it had some colorable basis because people were concerned about Watergate. And Mr. Bork had been in the center of a very controversial decision that history records as one of the most controversial matters ever to come before the Department of Justice. So maybe they had a basis for that. And they got that. But they did not ask for everything he wrote. And the Department of Justice did not give it.

Well, I will just say this to my colleagues. I do not believe this has been lost on my colleagues. I think they know that this request is unprecedented. How could they not know that? How could they not know?

They come and say: Well, here is a memorandum that was produced. And they don't show it may have been, and was, in fact, in every instance, a reference to a specific allegation of misconduct or wrongdoing. So that is an argument without basis. It has been demonstrated by Senator Hatch. It has been demonstrated by the facts.

Anybody who is fair and objective, and will listen, will know there is no basis whatsoever for demanding that Miguel Estrada produce these documents. And that is what the distinguished Democratic leader objected on. His basis for objection was solely that Miguel Estrada would not produce the memoranda he wrote while he was in the Department of Justice.

This is a big time principle. It is a major issue. It is not an itty- bitty thing. The Department of Justice is not going to give them, and Miguel Estrada has no power whatsoever to give them because they are not his. They are the work product he made for his client. His client was the United States of America. The United States of America is entitled to the best efforts of its assistants and Assistant Solicitors General, and they ought to be able to express their opinions to their supervisors, as they wish.

So, Mr. President, I think we have had enough time on this nomination. He has waited almost 2 years. The hearing was conducted by the Democrats, and it was a long hearing. They followed up with further questions. He has agreed to meet with any single Senator to answer any questions they have.

He is a man of extraordinary talent, incredible achievement, a man who came here, and he has lived the American dream. I am exceedingly proud of Miguel Estrada. I think he is indeed qualified to be on the Supreme Court. He ought to be confirmed for this Court of Appeals position without any further debate whatsoever. And he ought to be, I hope, one day considered for the Supreme Court. He is certainly that qualified.

I hope we will avoid this filibuster, move forward in this Senate back in accordance with our traditions of comity and respect and courtesy, in which nominees are presumed to be confirmable unless something is shown to be wrong, and that the President is able to move nominees forward, because we need them on the bench today.

I thank the Chair and yield the floor.

The Presiding officer: The Senator from South Carolina.

Mr. Graham of South Carolina: Mr. President, this will be a tough act to follow. The Senator from Alabama has done a wonderful job going through the nuances of where we find ourselves and explained the career of Miguel Estrada better than I could possibly do and has talked about the factors that bring us here at 1:10 in the morning.

All I can add to it is that I am new to the body. I was hoping my first engagement with the Senate would be about Social Security and talking about saving that system. But I find myself in the middle of something very historic; that is the filibustering of a circuit court of appeals judge--apparently, the only time in the history of our Nation such tactics have been employed. And you ask yourself, Why? What has gotten us here? Why have they chosen to do this?

One thing about being a Presiding Officer of the Senate is you get to learn a lot and hear a lot. One thing I have learned is that in the past the abuses of the judicial nomination process have sometimes been striking, and apparently both sides have engaged in some practices that just really do not seem right.

There are all kinds of cases where judges were never given a chance to be voted on and left in committee for years. And people did not like one judge, and they decided to make sure they never got a vote. And they were in the majority. It goes on and on and on. I guess that is politics. I do not suggest that the Republican party, in the past, has not done some things that were probably unfair to people, too.

But what we are about to engage in will become the mother of all abuses. It will take the country in a direction that it need not go in terms of judicial nominations. And the country, I hope, will wake up and listen a little closer to what we are doing over time. Editorial writers are beginning to write, and they are beginning to understand what is at stake. And from a Republican point of view, it is very unusual to have all these papers siding with us and criticizing our friends on the other side. That is normally not the case. What we are doing does affect the future of the country in a very dramatic way.

A courtroom--unlike the business of politics that we all chose to engage in--is a place for quiet reflection. All of us here as Senators have something in common. Our goal is to get 50 plus one vote, or 50 percent of the vote plus one. We engage in a business that is loud, expensive, nasty, and sometimes unpleasant but very important and very rewarding. Our objective, when it comes to election years, is to convince people to vote for us, call attention to what we have done, to how we are different from our opponent, and that we are better for your family and your business than the other person running. We have a big deal made about it, and we spend a lot of money, and we beat each other up, and the public votes and they get to express themselves. The majority wins.

Well, the courtroom is a different place. Our Founding Fathers understood that. There has to be someplace in a democracy where somebody who feels they have been wronged by a large group has a place to go other than the ballot box, because the ballot box sometimes is not the best place to ensure that justice is done in an individual case. So in our system the weak can sue the strong. They can go to a court, be judged by a jury of their peers, and the case will be presided over by somebody with a lifetime appointment, who doesn't have any polls to worry about, or any particular constituency to please. The only person to be pleased is Lady Justice.

The appeals process sends the case forward, and the courtroom itself, in terms of a trial, can be a pretty loud place, because you have witnesses, and a lot of testimony, and a lot of cross-examination. It can be a very flamboyant place. But whether or not that case will withstand scrutiny is determined by a panel of judges at the appeals level. And there is no quieter place in our legal system than the courts of appeals and the Supreme Court itself. People who are there for life listen to very well-constructed arguments by lawyers, who look at the precedents involved in the case, look at the Constitution, and try to render a fair verdict.

Our Founding Fathers understood that the judiciary needs to be an independent, separate branch of Government, immune, as much as it can be, from popular opinion, so that the unpopular may have a just verdict, or they may not get one otherwise.

Unfortunately, in this particular instance, the political trends to be set, if this filibuster is successful, will do great damage to the process of trying to pick qualified men and women to serve in this capacity in the future. The Constitution recognizes that the independent judiciary also needs a check and balance. Our judges at the Federal level are nominated by the President, the executive branch, and the Constitution has conferred upon this body the advise and consent role, a check and balance to the executive branch.

The Constitution envisioned supermajority votes of the Senate in a very few cases, and confirming a judge is not one of them. The Constitution envisions that nominees of any particular President will come to this body, and the Constitution envisions that a majority vote will determine the fate of that nominee.

The Senate rules, over time, have allowed the minority to be able to stop any particular matter, unless the majority can gather 60 votes. That is not part of the Constitution; that is part of the way the Senate works. For some reason, our friends on the Democratic side have chosen to filibuster a circuit court of appeals nominee for the first time in the history of our country. They have chosen Miguel Estrada for some reason. Well, I am not privy to their caucus conversations, but I have a feeling this goes back to last year's election. The Republican party picked up seats in last year's senatorial election that even we could not have envisioned as a party 2 years ago. Something happened in the 2002 election that allowed us to get 51 seats.

For every Member of the body, there is probably a different opinion as to what did happen in 2002. I argue to my friends on the other side that 100 years from now people will not write much about the 2002 election; they really won't care to know why Lindsey Graham got elected with nine other Republican freshman Senators. Unless I can do the Senator Thurmond thing, I will be long gone myself. But they will care and they will write about what happened to our country if we filibuster controversial judicial nominees as a matter of political practice. That will have taken us down a road that no one, so far, has gone down.

I am afraid that road would be a very unpleasant journey for our Nation. I think our friends on the other side of the aisle lost seats in 2002 because we had a popular Republican President, serving right after one of the most horrific events of our time--the tragedy of 9/ 11--a President Americans liked and trusted to make hard decisions. He was able to make the case to enough American voters in the 2002 election that the Senate in the hands of our Democratic colleagues was not producing in an appropriate fashion.

Now, I know people will disagree with that analysis, but that is what I believe. In my campaign, we talked about a homeland security bill that was held up because of special interest labor union politics. We talked about an antiterrorism insurance bill that would allow people to build buildings without having to absorb the risk of a terrorist attack by themselves because of legal provisions that trial lawyers wanted.

Also, we talked about judges who could not get a vote on the Senate floor. I am convinced that resonated, that after 9/11 people wanted us to work together and, rightly or wrongly, enough people in the country believed the Democratic-controlled Senate was not working as an efficient body and helping a President the public liked and wanted to be successful.

Right after the election in November, we had a special election in Louisiana in December. Our friends on the other side of the aisle were able to hold a seat. I argue that the momentum of the 2002 election was a moment in time, and that those in the Democratic Party who believe they must stand up to George W. Bush at every turn and take him on personally with every agenda he has control of must understand there is a limit to that strategy. The limit to that strategy has to be the common good. I argue that we have gone into an area where the common good is not being served. That the filibustering of Miguel Estrada's nomination to the DC Circuit Court of Appeals is not only unprecedented, I believe it is part of an overall strategy. I believe-- and I hope I am wrong--that we will see this happen time and again this year; that this is part of a strategy by our friends on the other side to further obstruct the ability of the President to move judicial nominees through the system.

By employing this tactic, they have set a course that will be hard to turn. Politics being what it is, people have long memories, and there will come a day when a Democrat will occupy the White House and the Republican Party will be in the minority in the Senate, and it will be talked about: Remember what they did to Miguel Estrada.

There is a certain part of politics that appeals to our basic instincts, not the common good, and I hope, and I literally pray, that our friends on the other side of the aisle will find a different tactic to take to make their points of view known about President Bush's agenda, including judges, rather than engaging in a tactic that will basically supplant the constitutional role of confirming judges by requiring Senates of the future to have to gather 60 votes to confirm a controversial judicial nominee.

This tactic will hurt us all. This tactic will belittle and demean the judicial nomination process. This tactic will change the constitutional process we have lived with for well over 200 years in confirming judges. This tactic will allow a bitter minority of the greatest body in democratic history to act in a way that will make it very hard for good men and women to serve. And that bitter minority one day may be a Republican minority.

I hope that reason will prevail; that we can reach a compromise of some sort that will allow everybody to walk away from this in good faith and say they fought the good fight and that Miguel Estrada will have a vote up or down, and that this tactic of filibustering, requiring a supermajority vote for judicial nominees, will give way for the sake of the common good.

It has been amazing to me to see the transformation of the arguments against Miguel Estrada and how they have changed over time. Being a member of the Judiciary Committee, I can recall being shocked by hearing the phrase from someone--and I cannot remember who--"he's not Hispanic enough." Obviously, I am not Hispanic, and I do not know what being "Hispanic enough" means. It was a phrase that just really did not sound nice, was not befitting of the experience we are all in, and was used to explain the fact that Miguel Estrada, by going to a private school, somehow did not share the Hispanic experience. That sounded offensive, and it was offensive. Nobody says it anymore, and that is the good news.

When the Hispanic groups that came out against Mr. Estrada's nomination first rallied around this cause, they were pretty hard on him as a person. Once one understands who he is and what he has gone through, it really is unfair to be hard on him as a person because he is a good person and he has overcome obstacles that everybody should be proud of, that I could only imagine.

He truly has lived the American dream. He made something of himself in the most difficult of circumstances. We do not hear much about that anymore. As a matter of fact, we hear from our friends on the other side of the aisle that this has nothing to do with his ethnic background. Good. Because it should not. It should be about who is qualified. We should enjoy and relish the fact that diversity is part of the American dream, and that for the first time, we will have a Hispanic member on the Circuit Court of Appeals for the District of Columbia, the second highest court in the land. That would be a good thing for America, and we should rejoice in it if it does happen.

Then the attacks moved to a different level: He has never been a judge. When I first heard that, it made me wonder. To be on the circuit court of appeals, maybe it is a good thing to be a judge before you get promoted. Then I learned that Justice Rehnquist and untold numbers of men and women serving in the Federal judiciary were promoted to very important positions without ever having any previous judicial experience, which makes sense because being a judge is a cocktail of several items: Temperament, intellect, the ability to understand human behavior, the ability to reason and to have a kind and compassionate disposition. That is what I am looking for, and people can bring those qualities to the table without ever having worn a robe.

That argument, that he has never been a judge, fell by the wayside when the untold numbers of judges who never had any experience before came forward. So he is like so many others. It makes no sense to say no because of that.

The next argument is he is ideologically driven; that there is something about this man that would not allow him to look at my case or your case or anyone else's case fairly because he is so driven by his ideology that he cannot see justice, that he cannot see facts, and he cannot see prior decisions. I am assuming this ideology is one of some extreme view of the law that only a radical conservative could have; that he is ideologically not equipped to serve in such an important job.

That has to be analyzed in terms of the man's life. It is easy to say something, but it should be a requirement that it be true. I will just offer one fact for people to consider. If he is so ideologically driven that he cannot fairly render justice, how in the world could he have worked for the Bill Clinton administration? I would argue that any ideologically driven conservative would have had a hard time working for Bill Clinton. Not only did Miguel Estrada work in the Clinton administration's Justice Department, he performed in an outstanding manner.

One of the gentlemen who accused him of being ideologically driven happened to be the person who rated his performance, and during the reporting periods involved, he said he was an outstanding lawyer who always applied the law and the facts based on reason and not personal agendas.

The idea that Miguel Estrada is some right-wing ideologue makes absolutely no sense, and he is being supported by the people who know him the best--by Democrats and Republicans who understand that he is a man of great credentials. I will assure my colleagues of one thing, if you do not believe anything else I have said, that the American Bar Association is never going to unanimously support somebody who is an ideologue on the conservative side, and he received a most highly coveted rating, well qualified, by the American Bar Association. That argument that he is an ideologue that cannot see reason is stupid.

The next one is: We do not know enough about him and the only way we are only going to know about him is for us, our friends on the other side, to have access to all the memoranda he has ever written as a lawyer when he worked for the Department of Justice.

There is a reason that all the Solicitors General have come out unanimously against the idea of producing legal memorandum in that Department to the Congress. Nobody would want the lawyers who worked for them, who advise them with written or oral opinions, to have that work product disclosed to the public in a fashion that would change people's opinions and change the way they would advise. If it ever becomes the law of the land, if this case results in internal memos written by lawyers to clients, if that becomes part of how a judge is chosen, then I would argue that Government lawyers who have any aspirations of being a judge are going to find themselves in a very difficult circumstance.

There is a reason that every Solicitor General living today has said that the memos requested by our friends on the other side should not be released. What I find most astonishing is that the last administration, and some who know me understand that I was probably not their biggest fan, time and time again used privilege after privilege, mostly made up, to protect everything they touched. I thought they abused the privilege doctrines, but here is something we should all be able to agree upon: That when a lawyer writes a memo to a client, that should stay between the client and the lawyer. And if the client does not want the memo released, for the good of us all, for the sake of the attorney-client privilege, for the sake of good government, that request should be denied. We do not know enough about him because we really have not had a chance to talk to him.

I was in the Judiciary Committee. The man was there all day. There is a volume that was produced from the hearings. He has been around for a year and a half. He has answered questions. I think he has given good answers. This is not about not knowing enough about him, not being able to answer the questions that were not properly asked, because the people who want this information are going to vote no anyway.

This is about conservative versus liberal. This is about politics. This is about trying to rectify the losses in 2002. I am convinced that our friends on the other side of the aisle have decided that the only way they can get back into the game is to oppose President Bush. Instead of learning from the 2002 elections that obstruction was not the way to a majority, I think they have blinders on now in that they have engaged in a political dynamic that not only will not allow them to regain the majority of this body but could do irreparable damage to our country in the future.

I know that each and every one of them believes that there is a high purpose for what they are doing; they love their country as much as I do and would disagree with my assessment. But this I am sure of: if this filibuster is successful, 100 years from now we will have changed the way business is done in the Senate in regard to confirming controversial judicial nominees. And 100 years from now, people, if they could, would come back to each and every one of us and say: Why did you do that? I wish you would have not done that. We are paying a price for your desire to get a political advantage that you could not even envision.

I am hopeful that over time there will be Members on the other side of the aisle sufficient enough in number who will say: I will not engage in this practice to the point that I am legitimizing a filibuster of a circuit court nominee that will set in motion forces of the future that will change the way the Constitution works.

I am hopeful we will eventually get enough votes not to confirm Miguel Estrada but to allow a vote to be had to confirm Miguel Estrada. If that vote is had, he will win, I am convinced. For the sake of the future of this country, I hope that some time in the near future this tempting practice of making it hard for President Bush to get forward any judicial nominee our friends on the other side do not like will be abandoned because I am convinced they will look back in their political career with great regret that they ever did this.

Several of them are on record of having said in the past, just give him a vote. I will never engage in a filibuster of a judge because I think it is wrong, I think it is bad for the country. When Senator Leahy said it, he was right. When Senator Kennedy said it, he was right. When Senator Feinstein said it, she was right. At the time they saw very clearly the consequences of what could happen.

We are too close to the 2002 election for some of our friends on the other side of the aisle to see clearly. All they see is a majority lost and a real desire to get it back. Please reflect, please do not be blinded by the political moment. Please do not take our country down a road that we will all regret.

Mr. KOHL. Mr. President, I rise today to explain again my reasons for supporting a filibuster on the nomination of Miguel Estrada. At the outset, let me state that my opposition to bring his nomination to a vote is not a decision I have reached causally or without serious reflection. Our power to extend debate on a nomination should only be undertaken in extraordinary circumstances, when we have no other choice. We have reached that unfortunate state of affairs today.

In the case of Mr. Estrada, we are presented with a nominee for a lifetime appointment to our Nation's second most powerful court. This nominee has refused to answer our questions regarding his views and judicial philosophy, and indeed has obstructed our efforts to evaluate his fitness to serve on the D.C. Circuit. His repeated evasions subvert our solemn constitutional duty to advise and consent to judicial nominations. We should not permit a vote on a judicial nominee who has so fundamentally attempted to obstruct our confirmation process in this way.

I am aware of the criticism that our action is unprecedented. This is simply not true. While such a step is not--and should not--be done routinely, filibusters of judicial nominations have been undertaken under the leadership of both parties several times in recent years. According to the Congressional Research Service, the Senate has attempted to invoke cloture in response to extended debate on judicial nominees 13 times since 1968. Indeed, cloture was sought after extended debate in response to Republican-led opposition to no fewer than four of President Clinton's judicial nominees.

These statistics do not take into account the silent filibuster known as a "hold"--often anonymous--which permits one objector to block consideration of a judicial nominee. President Clinton's nominees were routinely defeated by anonymous holds. And those holds only defeated the nominees who were lucky enough to even get a hearing and a committee vote. It seems that the same forces complaining about the "unfairness" of extended debate on the Estrada nomination were enthusiastic in blocking President Clinton's nominees without any debate just a few short years ago.

I also am distressed at the false and misleading charges and accusations that Mr. Estrada's supporters have leveled during this debate. The most outrageous is the cynical charge that our opposition to Mr. Estrada is somehow motivated by the fact that he is Hispanic. Nothing could be further from the truth. Our opposition to him is solely based on his consistent obstruction of our review of his nomination and his unwillingness to provide us with the information needed to evaluate his fitness.

No observer can doubt that we support and indeed make diversity a priority in our courts, including appointing Hispanic Americans to fill these positions. And let's remember that the confirmation of at least three highly qualified appellate court nominees of Hispanic origin nominated by President Clinton--two for the Fifth Circuit and one for the Ninth Circuit--were blocked by the same people who complain today about our opposition to Mr. Estrada. One thing is perfectly clear: This nomination has nothing to do with ethnicity and everything to do with duplicity.

When Mr. Estrada refuses to candidly share his views with us, we are left with his record. And this record leaves us with grave concerns about confirming him to this crucial judgeship. A few examples from Mr. Estrada's career highlight these concerns. Mr. Estrada devoted substantial time and energy to defending, on behalf of pro bono clients, anti-loitering statutes, laws which often result in the arrests of a disproportionate number of African-Americans and Latinos. These laws have been repeatedly struck down for violating free speech rights. On the other hand, Mr. Estrada has argued on behalf of the First Amendment rights of a large pharmaceutical company charged with engaging in a deceptive advertising campaign. These two cases make it appear that Mr. Estrada is more comfortable with asserting the First Amendments rights of giant corporations than average citizens. He has also argued in Federal court against the standing of civil rights organizations to vindicate the constitutional rights of their members.

When one reviews Mr. Estrada's professional record, then, there appears to be little to rebut the opinion offered by Paul Bender, his supervisor for three years at the Solicitor General's office, that Mr. Estrada is a "right-wing ideologue" who "lacks [the] judgment . . . to be an appeals court judge." This view, from the one person at the Solicitor General's office who knew his work best, is damning.

Of course, if we had access to Mr. Estrada's memorandums and opinions at the Solicitor General's office, we could evaluate for ourselves whether Mr. Bender's opinion is unduly harsh or not. But we do not have such access. If Mr. Estrada was willing to candidly discuss his views and judicial philosophy with us, our concerns about whether he was outside the mainstream might be assuaged. But this he is also not willing to do so. We have no choice but to rely on his record, and this record convinces us that he does not warrant confirmation to the D.C. Circuit.

Anyone who reviews my record on judicial nominations knows that I have not reached my decision to support extended debate here--indeed my decision to oppose Mr. Estrada's confirmation--lightly. In my entire 14 years in the Senate, I have voted to oppose the confirmation of judicial nominations only seven times. But this nominee's evasions and gross disrespect for our nomination process, when combined with the disturbing evidence from his public record of his extreme ideology, leave me no choice.

One of the most important tasks we perform is our constitutional duty to "advise and consent" on judicial nominations. Once their nominations are confirmed by the Senate, these men and women serve lifetime appointments, unanswerable to Congress, the President, or the people. They will become the guardians of our liberties, of our Constitution, and of our civil rights. Our duty to "advise and consent" is the only check we will ever have on the qualifications and fitness of those chosen to serve as Federal judges.

When a nominee subverts and impedes this vital process by declining to answer our questions so that we cannot evaluate his fitness to serve, he has disqualified himself for consideration by this body. We simply cannot vote up or down on a nominee who both has no judicial record and refused to provide us with the information necessary for us to gain even the most basic understanding of his opinions, his outlook, or judicial philosophy. For these reasons, I oppose his confirmation.

I suggest the absence of a quorum.

The Presiding officer: The clerk will call the roll.

The legislative clerk proceeded to call the roll.

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

The Presiding Officer (Mr. Graham of South Carolina): Without objection, it is so ordered.

Mr. Frist: Mr. President, as majority leader, I have not taken the opportunity today to discuss the nomination of Miguel Estrada, although I did have the opportunity to participate in the debate and the discussion that we had earlier this evening.

Of course it always on my mind, because the filibuster that is being maintained is very troubling.

Well, I wanted to find some time and it is now 1:45 in the morning here in Washington, and this time works for me.

As we have heard tonight, the leading obstacle to Miguel Estrada's confirmation are unprecedented requests by the minority of documents written by Mr. Estrada when he worked for the Clinton Reno Justice Department.

Well, since we have time, I would like to read at length from a letter just released, this will be the first time anyone has heard this letter to my colleague the Senator from New York from Alberto Gonzales, President Bush's White House Counsel, and like Miguel Estrada, a fine legal mind.

The letter is dated February 24, 2003, and it begins: