Posted on 03/03/2003 8:33:00 PM PST by Steven W.
March 3, 2003
Dear Mr. and Mrs. xxx:
Thank you for writing to express your concerns about the nomination of Miguel Estrada.
I appreciate receiving your letter on this nomination. For your information, I have attached a copy of the statements that I gave on the Senate floor on February 10, and February 14, 2003.
Again, thank you for writing. If you should have anymore questions or comments, please feel free to visit my website at http://feinstein.senate.gov, or contact my office in Washington, D.C. at (202)224-3841.
Statement of Senator Dianne Feinstein On the Nomination of Miguel Estrada for the D.C. Circuit Court of Appeals February 14, 2003
Mrs. FEINSTEIN. Mr. President, I had an opportunity to come to the floor once before and express my views about the nominee who is before the Senate for confirmation, Miguel Estrada . But I want to make a few additional points at this time, and I hope I don't repeat myself.
I want to say for my part and for the part of many others in the body that this is not a debate we were eager to begin; this is not a debate we are eager to continue; but this is a debate that really goes to the heart of the separation of powers and the checks and balances that the Founders of this Nation so carefully crafted more than 200 years ago.
The President makes nominations to the Federal judiciary. This is true. But it is a judiciary that Congress fashioned, and it is a judiciary that the Senate has been given the constitutional responsibility to help fill, through our advice and consent role.
I am one who has always believed that every nominee should get a full and fair hearing and that every nominee should then get an up-or-down vote. For too long, I watched one after another Clinton nominee languish without any such courtesy, and with no explanation as to why. Many of his nominees were minorities who never even got the chance to speak to the Committee.
Chairman Hatch and I had many conversations during that time about moving more nominees through the committee. And I know he did more than many in his caucus would have liked him to do to move nominees. For that, I thank him. I believe deep in his heart he also believes nominees should move through and get a hearing. But still, too many nominees were stopped from even the most basic of rights during the nomination process--a hearing--a basic right for someone who is nominated to the Judiciary Committee. They should have a right to have a hearing, in my view. In this case, the Democrat-controlled Senate gave Miguel Estrada a full and fair hearing and every opportunity to show the committee what kind of judge he would be. But he did not use that opportunity well.
Although I believe that every nominee deserves an up-or-down vote, an up-or-down vote on final confirmation should only occur after the Senate has had a full opportunity to learn about the nominee and to properly judge whether or not that nominee can serve impartially in the Federal judiciary. In this case, I don't believe we have enough information to make such a decision, as a direct result of the lack of cooperation by this nominee and by the White House. As a result, we should not be asked to make such an important decision.
I want to clearly state this is not an issue of retaliation, as some have suggested. It is true that the Republican Senate did block a number of very qualified Hispanic nominees--female nominees, and so on--under President Clinton.
And it is true that many on this floor have mentioned those nominees--Enrique Moreno, for instance. But they were mentioned not to begin some tit-for-tat exchange of blocked nominations. Quite the contrary. Under Chairman Leahy, the Judiciary Committee and the Democrat-controlled Senate confirmed 100 nominees in just over a year.
Mr. Estrada has already been given far better treatment than many were given by the other side in the recent past. All we ask for is some basic answers to the most basic of questions. Think about this: Before us now, we have a 41-year-old nominee about whom we know little. He has been nominated to a crucial appellate court, the DC Circuit, which is, at present, evenly split. That raises the question, Do we have a right to know if this judicial nominee can be impartial? I believe we do.
In this case, this nominee, for some reason, has been very controversial from the beginning. We have heard from many who have worked with Mr. Estrada or even supervised him, and many who have watched him work throughout the years.
Without exception, all of these individuals believe Mr. Estrada is bright. And I am confident that every Democrat in this body agrees with that assessment. But that is not the problem. And that is not the question today.
Without exception, all these individuals believe Mr. Estrada to be well educated, as my colleagues on the other side of the aisle have indicated throughout the last few days. But that, too, is an issue that is not in doubt, and it is not the problem.
And essentially, without exception, all of these individuals believe Mr. Estrada is conservative. Some believe him to be very conservative, some less so, but all recognize him to be a conservative. Even Mr. Estrada himself, as I understand it, would likely describe himself in this manner. But make no mistake, this is not about whether or not Miguel Estrada is conservative.
I have already voted for nominees whom I know to be conservative, as have most, if not all, of my Democratic colleagues.
At the present time, I have just given my proxy to the Judiciary Committee that is considering three nominees to appellate courts who are, in fact, conservative. And I will vote yes on those nominees.
So the question is not whether this nominee--or any nominee--is liberal or conservative, White or Hispanic, Jewish or Catholic, or any other group or inclination. The question with this nominee-- and with every nominee--is whether the nominee can put aside personal beliefs to rule fairly and impartially on the cases that come before him or her.
In some cases, we can get a clear idea of how a nominee would handle the responsibilities of a Federal judgeship. But in this case, as we tried to get a clear idea of how this nominee would handle these responsibilities, we were really stymied at every turn.
On the one hand, we have letters, phone calls. To my office, we have received almost 8,000 phone calls in opposition to this nominee; and less than 400 in favor. All these phone calls seem to indicate the belief that Mr. Estrada is an ideologue who cannot be trusted with a circuit court judgeship.
We have Professor Paul Bender, Mr. Estrada's direct supervisor at the Department of Justice, who said to the press that he believed Estrada to be so ``ideologically driven that he couldn't be trusted to state the law in a fair, neutral way.'' Mr. Bender recently sent a letter to the chairman of the Judiciary Committee essentially reaffirming this statement.
We have major Hispanic organizations--just those groups one might expect to most strongly support Mr. Estrada --strongly opposing him instead.
On the other hand, as we look for facts to counteract such serious concerns, we have almost nothing.
Miguel Estrada has never been a judge, so we have no record of judicial decisionmaking to examine. This in itself is not dispositive, but it is the first area where we find no record to help us in our decisions.
Mr. Estrada is not a prolific writer, so again, unlike many, we have no real record of writings or speeches to examine. Again, this alone would not be dispositive, but, as I said earlier this week, in a sense, it is strike two in terms ofw here we can get information about this nominee.
We have not been granted access to the memos he wrote at the Department of Justice, so we can only take the word of the man who supervised him that those memos were ideologically driven and could not be trusted. That is strike three.
Mr. Estrada refused to adequately participate in his own confirmation hearing, so we have no real answers to these questions. And the questions are legitimate. Even when given time to think about his answers, even when he was given questions in written form, he refused to answer those questions, using precisely the same language he used to refuse to answer at his hearing.
For instance, when Senator Durbin asked this nominee, in writing: ``Do you have an opinion on the merits of Roe v. Wade?'' Mr. Estrada responded, as he did to me in committee would not be appropriate for me to express such a view without doing the intensive work that a judge hearing the case would have to undertake--not only reading briefs and hearing the arguments of counsel, but also independently investigating the relevant constitutional text, case law, and history.''
In the hearing, I asked him: Do you believe Roe was correctly decided? And he said he could not answer that question.
When Senator Kennedy asked Mr. Estrada , in writing, how he would have resolved a case that came before the DC Circuit and was then decided by the Supreme Court--Hoffman Plastics--Mr. Estrada again answered that because he had not read the briefs and was not present at oral argument, he could not answer.
When Senator Kennedy asked him about the Maryland/DC/Delaware Broadcasters case, again Mr. Estrada said he could not, or would not, answer. When Senator Durbin asked Mr. Estrada to name any judge, living or dead, whom he would seek to emulate, Mr. Estrada said he could name not one judge he would emulate. In contrast, let me take a moment to talk about Judge Richard Paez, a well-qualified Hispanic nominee sent to the Senate by President Clinton and eventually confirmed to the Ninth Circuit Court of Appeals. Judge Paez spent more than 1,500 days before this Senate before he finally got a vote. And this came despite the fact that he answered every question put to him. For instance, Senator Sessions asked him: ``Which Supreme Court Justice or federal judge has most influenced your judicial philosophy?'' Judge Paez named Judge Harry Hupp, a man he appeared before as a litigator, and a colleague of his on the district court bench. Senator Sessions asked Richard Paez: ``In your opinion what is the greatest Supreme Court decision in American history?'' Judge Paez did not refuse to answer, or claim that he could not give an answer because he had not been present at oral arguments. Instead, he simply named Brown v. Board of Education.
Senator Sessions then asked: ``What is the worst Supreme Court decision?'' Judge Paez answered: ``Dred Scott.'' This is the decision where the Supreme Court ruled, essentially, ``once a slave, always a slave.'' Miguel Estrada , on the other hand, would not answer these types of questions. Senator Schumer asked him to name any Supreme Court case he thought was wrongly decided. He did not simply say he thinks Plessy v. Ferguson was wrongly decided.
That is the case that upheld the concept of separate but equal. And even the Supreme Court has since overturned it. I know of few people who would claim Plessy was correctly decided. But Miguel Estrada apparently thinks he could not say so without having heard the oral arguments. He did not say he disagreed with the Dred Scott decision, which upheld slavery. He did not say he believed Korematsu, which upheld the right of the United States to put American citizens of Japanese descent into internment camps. He named none of these cases. He simply said he could not answer the question.
This is in direct contrast to a recent experience with Jeffrey Sutton during his hearing less than 2 weeks ago. Mr. Sutton is also a controversial nominee, but he answered every question put to him. We got a good sense of how he would think and act as a judge. I, myself, who was concerned about him initially, felt he was a strong advocate, but he knew the difference. He could separate himself from the positions of advocacy and become a fair and impartial judge. So I have given my proxy right now to be carried out to vote yes for Judge Sutton. Mr. Estrada , on the other hand, did his best to keep from putting himself on record on any issue of real substance.
Quite frankly, there are options. One, return this nominee to the Judiciary Committee for answers. The Senate deserves the answers. Democratic nominees were asked by distinguished Republican Senators to answer questions such as this, and they did. Even of those, many had judicial records.
Many had prolific writings. Many had speeches so that there were tools we could go to to understand what their thinking was. But in this case we have no speeches. We have no writings. We have no record. Therefore, the answers to the questions become extraordinarily dispositive. They also become meaningful to any Senator who wants to cast an informed vote.
It is that simple. That is what this debate is about. We cannot possibly fulfill our constitutional duty to advise and consent to nominees if we are not given the necessary information about the nominee. In a case where you have a critical circuit such as the DC Circuit, not only the plumbing grounds for the U.S. Supreme Court, but handling environmental appeals, Superfund appeals, wetlands appeals, OSHA appeals, all kinds of administrative case law appeals, how this court is tilted becomes important to us, particularly if we take this job of confirmation of nominees seriously.
There is another option. That option is appoint Miguel Estrada to a district court. Give him an opportunity to gain that record. He is 41 years old. He is younger than my daughter. Give him an opportunity to gain that record. Remember, this is a man who will serve for 30, 40, possibly even 50 years. It is a lifetime appointment. We are entitled to answers to these questions.
In Miguel Estrada's questionnaire, he admitted to having written no books, articles, or reports of any kind, save one Law Review article in law school. That was titled ``The Policies Behind Lending Limits.'' He wrote that in 1985. At Miguel Estrada's hearing, he would not comment on whether any case had ever been wrongly decided, even cases that have been overturned. He would not name any single judge he would want to emulate on the bench in any way. He would not answer written questions put to him that would help us learn more about how he thinks about cases and how he would judge them. He would not even try to convince the Justice Department to turn over some of the memos he wrote for the Solicitor General's Office, nor would he himself turn them over.
If this nominee is confirmed, we believe we would be sending a signal that stonewalling the Judiciary Committee and the full Senate is the way to succeed on the way to a judgeship. That is the wrong signal and the wrong message.
In effect, we would be abdicating our constitutional role, our constitutional duty to advise and consent to nominees, because we would never again be able to learn enough about a nominee to make reasoned decisions. Nominees could become increasingly young, increasingly ideological, and increasingly silent. The courts would soon be packed with judges of unknown disposition, unknown temperament, and unknown proclivities to judge fairly and impartially. We should take our constitutional duties more seriously than that. We simply are determined not to let that happen. I would like to read the concluding sentence from the editorial in today's New York Times: The White House can call this politics or obstruction. But in fact it is Senators doing their jobs. I yield the floor. Statement of Senator Dianne Feinstein On the Nomination of Miguel Estrada for the D.C. Circuit Court of Appeals February 10, 2003
Mrs. FEINSTEIN:Mr. President, I rise to explain my position on the nomination of Miguel Estrada and to speak more generally on the state of the nomination process in today's Senate.
This is a difficult time for all of us in the Senate and, indeed, the Nation. We stand on the brink of war, with an economy that is sputtering, and the threat of international terrorism as close at hand as it has ever been. These are serious issues, issues the American people have sent us here to debate and to try to solve. In doing so, it is vital we come together as a Government, not as Democrats versus Republicans, or Congress versus the White House, but as one Government and one Nation. As best we can, we should work together, consult each other, debate the issues forthrightly and with strength of purpose, and then come to agreement on how to solve the problems that confront us.
One of the reasons this issue is so important is because the judges we confirm over the next few years will help decide whether acts of Congress will stand or will be struck down. They will decide how far the law will go to protect the safety and rights of the American people. They will have the power to limit or expand civil rights protections. They will have great leeway to interpret the laws protecting or limiting a woman's right to choose. They will be able to expand or limit gun control laws, laws against child pornography, campaign finance laws, and many more. In a real sense, these judges will have as much power, or more, than any of us in this body. Clearly, the court with the biggest impact will be the Supreme Court. But the District of Columbia Circuit Court is a close second, and is often cited as the most powerful court in the Nation. It is no coincidence that the DC Circuit has produced more Supreme Court Justices than any other circuit.
Three of the nine current Justices -- Justice Scalia, Justice Thomas, and Justice Ginsburg - sat on the DC Circuit. In fact, it is hard to overstate the importance of an appointment to the United States Circuit Court of Appeals, and particularly the DC Circuit. The Supreme Court of the United States is our Nation's court of last resort. But it heard less than 80 cases in the 2000-2001 session. In contrast, the Federal courts of appeal considered over 27,000 cases during the same period. For so many of the legal injuries for which people seek redress, the courts of appeal are the last stop, the ultimate decisionmaker. And the DC Circuit is the most important of all circuit courts because it is the court that most closely oversees the actions of Federal agencies; actions that have real, everyday impact on the lives of all Americans. The DC Circuit reviews appeals regarding decisions by the Federal Communications Commission, the National Labor Relations Board, the Federal Election Commission, the Americans With Disabilities Act, the Federal Energy Regulatory Commission, the Endangered Species Act, and the Environmental Protection Act, including the Resource Conservation and Recovery Act; the Superfund, the Clean Water Act, the Clean Air Act, and countless other agencies and statutes. Because the Supreme Court reviews so few cases, the DC Circuit essentially has the last say on whether decisions by these agencies will stand or will not stand. In recent years, the DC Circuit has become a hostile forum for environmental protections. Since 1990, the DC Circuit has struck down or hindered a long list of crucial environmental protections, including clean air protections for soot and smog, habitat protection under the Endangered Species Act, clean water protection for millions of acres of wetlands, fuel efficiency standards known as CAF standards, designation of sites on the Superfund National Priorities List, and guidelines on treatment of petroleum wastewater.
As Senator Kennedy pointed out in Miguel Estrada's hearing, the recent case of Maryland/DC/Delaware Broadcasters Association v. the FCC, the DC Circuit found a portion of the FCC's equal opportunity policy unconstitutional. Specifically, the court struck down a policy of broad outreach for minority broadcasters. This decision, right or wrong, will have a significant impact on the ability of the FCC to encourage minority participation in the broadcast industry. Incidentally, Mr. Estrada essentially refused to comment on this case when asked to do so. Steffan v. Perry involved a young man at the U.S. Naval academy, Joseph Steffan, who admitted to two of his classmates that he was gay, although he never admitted actually performing any homosexual acts. Steffan was discharged under Department of Defense regulations indicating that homosexuality is incompatible with military service. Steffan argued his dismissal was impermissible, as it was based on status -- being gay -- not conduct. The DC Circuit held, in 1994, that the Defense Department regulations were permissible, however, and that the Steffan dismissal would stand. I could go on and on with cases -- United States v. Bailey, for instance. Or AKA v. Washington Hospital Center, where the court ruled in favor of an orderly who, after 19 years of work, was forced to have heart surgery and who was then denied the right to transfer to another job within the hospital that would not require the same level of physical activity. The District of Columbia Circuit is also the court that most often reviews terrorism cases on appeal. All in all, it is quite clear that the District of Columbia Circuit is constantly at the center of complex key issues of the day.
Currently, there is a delicate balance on this court. There are four Republican appointees and four Democratic appointees, and four vacancies. Therefore, this nominee effectively tilts the balance on that court. That is why many of us believe it is so important to learn how this nominee thinks, what his judicial temperament would be, and so on. During the last several years of the Clinton administration, two highly qualified Clinton nominees were blocked permanently. Some believe the purpose of this was to initiate a concerted, planned effort to keep vacancies open on that court so they can be filled with conservatives in the event of a Republican President. When President Bush took office, he sent us two nominees for the district circuit. One of them is Miguel Estrada. I don't believe it is appropriate for us to simply block all nominees to the District of Columbia Circuit in retaliation for that having been done to Democratic nominees. That is not why I am here today. But at the same time, we cannot ignore the fact that this important circuit is now so closely divided. In deciding whether to confirm a given nominee to such a delicately balanced court, we must ensure that the judges we send to the court can administer the law fairly and impartially. That is the case before us today: Can Miguel Estrada administer the law fairly and impartially?
We have before us a 41-year-old nominee about whom we know very little. To properly discharge our constitutionally derived advise and consent function, the Members of the Senate must be given enough information to make the right decision about a given nominee. In this case, I have heard many comments on this nominee as a very bright but ideologically driven young attorney, one who would put his beliefs ahead of the law if confirmed to the Federal bench. So I want to try to figure out whether that is true or not. Many who knew him, know him, have supervised him, or have spoken to him believe strongly that he does not have the temperament or impartiality necessary to fairly administer the law. My office has received literally thousands of calls about this nomination -- more than 7,900 phone calls, to be exact. Fewer than 300 of those 7,900 calls were in favor of Miguel Estrada's nomination.
To counteract serious concerns from those who know him and from those whom we represent, we need evidence that would contradict these opinions. Quite frankly, we do not have that evidence.
Miguel Estrada has never been a judge. So we have no record of judicial decision-making to examine. This is not dispositive in itself, but it is the first area where we find no record to help us in our decision. Mr. Estrada is not a prolific writer. So we have no real record of writing to examine. Again, this alone would not be dispositive, but it is strike 2 in terms of where we can get information about this nominee. We have not been granted access to the memos he wrote at the Department of Justice. So we can only take the word of the man who supervised him that those memos were ideologically driven and that he could not be trusted. Mr. Estrada refused to adequately participate in his own confirmation hearings, which I will comment on as a great surprise to me and the reason I changed my view. So we have no real answers to our questions. Let me expand on this last point because I think it is instructive to examine and contrast our experience with Mr. Estrada and our experience with one other nominee. At last week's markup, I was struck by the lack of information about this nominee. Yet, as I said, I liked him very much when I met with him personally. But I was startled by his performance at the public hearing. So I got the transcripts, and I reread the transcripts to try to see if there was anything I missed -- something I could zero in on that would let me know he would in fact be fair and impartial.
What came to my mind was the real contrast with another nominee. That nominee is a man by the name of Jeffrey Sutton. He also was controversial. The disabilities community had a lot of concerns about him. But Mr. Sutton at his hearing answered every question put to him intelligently, in a fulsome way, and I thought forthrightly. So I could tell how he would act as an appellate court judge. The committee was able to gauge his intelligence, his manner of thinking, and we can use that back-and-forth to help us predict whether Mr. Sutton would be a good and fair judge or whether he would skew outcomes of cases to meet his own ideological goals. Mr. Estrada, on the other hand, did his best to keep from putting himself on the record on any issue of real substance. For instance, when Senator Schumer asked Mr. Estrada to name three Supreme Court cases in the last 40 years with which he disagreed, Mr. Estrada simply refused to answer.
When I asked him whether he believed Roe v. Wade was correctly decided, he declined to answer on the basis that he had not done what the "judicial function would require" to determine whether the Court correctly decided the case.
When Senator Leahy asked him what he thought of the decision in Romer v. Evans, a case involving discrimination against homosexuals, Estrada responded "I can't know because I was not a judge in the case." When Senator Kennedy asked Mr. Estrada a written question about a union retaliation case decided by the DC Circuit in 2001 and reversed by the Supreme Court last term, Estrada responded "Although I have read the Supreme Court's opinion...I have not read the briefs in the case, was not present at the oral argument, and have not independently researched the issue decided by the Court. For those reasons, I am not in a position to know how I might have resolved the issue...nor am I in a position to answer the question whether the Supreme Court acted appropriately."
When Senator Kennedy asked him in writing whether another case involving diversity outreach had been decided correctly, Estrada again fell back on the argument that because he had not heard oral arguments and had not read the briefs, he could not answer. When Senator Kennedy asked Estrada about yet another Supreme Court case, American Trucking v. EPA, where the Supreme Court reversed the District of Columbia Circuit, Estrada again fell back on the argument that he had not been present for oral arguments and could not, therefore, comment on whether the case had been correctly decided.
That kind of answer makes it truly difficult to get a sense of where a nominee is coming from in terms of thoughtful process, analysis, and legal expertise. When it comes to the most important circuit court in the Nation and there is no record and there is no writing, the Senate of the United States is entitled to know these answers.
It strains credibility that a nominee for the circuit court of appeals would still have no opinion on whether a case such as Roe was correctly decided Or whether any case in the last 40 years was incorrectly decided. Finally, it is troubling to get these answers from a nominee about whom we know so little and who is nominated to a court that will decide so much for so many.
Taken as a whole, I could not, in good conscience, vote for this nominee, with so little information, recommending him to such an important lifetime appointment. And I cannot help but wonder: Why didn't the President appoint him to a District court? He is younger than my daughter. Give him an opportunity to produce a record, and then move him on to an appellate court when that record could, in fact, be examined. A few days after I cast my committee vote against Mr. Estrada, White House Counsel Al Gonzales sent a letter addressed to me personally criticizing my vote and asking me to reconsider. Because Judge Gonzales has made the letter available to others, and it has now appeared in the press, I find it necessary that I correct the record. And I would like to do so. Mr. President, I ask unanimous consent that this letter from White House Counsel Alberto Gonzales, dated February 3, 2003, be printed in the Record. Mr. President, in his letter, Judge Gonzales suggested I based my decision to vote against Mr. Estrada on "inaccurate or incomplete information on certain issues that you have deemed important to the Estrada nomination."
Needless to say, I disagree with that assessment. It is not because I was misinformed that I voted against this nominee. It is because this nominee did not inform the committee enough. Simply put, Mr. Estrada did not adequately answer the questions put to him in his hearing. Particularly with a nominee who is so young, has such a very limited or nonexistent written record, and has been accused by so many of being too ideologically driven to serve impartially on the second highest court in the land, it is incumbent on each Member of the Senate, in our advise and consent role, to thoroughly examine the nominee's thought processes and to determine whether the nominee can and will be an impartial judge. In this case, it was impossible to make such an assessment because the nominee himself would not let us.
Judge Gonzales raised four specific issues in his letter. I would like to take some time to go through the Gonzales charges and to answer them one by one. First, Judge Gonzales stated in his letter to me "[I]t appears that you relied on the fact that Estrada has no previous judicial service." It is true that Mr. Estrada has no previous judicial experience, but I did not rely on Mr. Estrada's lack of judicial experience, at least not exclusively. I said in my statement before the committee "[i]n this case, it is truly difficult to make this decision, because we have before us a fairly young nominee -- just 41 years old -- who has never been a judge, has little written record to speak of, and who has not given us a real sense of what kind of judge he would be. He, essentially, is a blank slate. And if confirmed, he could serve for 30, 40 or even 50 years on one of the highest courts in this nation. We had better be right about this decision."
I truly believe this. This is a big decision, as are all our decisions to place nominees in lifetime positions of such power and influence over the lives of people.
I was concerned, and I remain concerned, that given Mr. Estrada's lack of judicial experience, the Judiciary Committee needed to turn to other sources of information to get a better sense -- any sense, really -- of the kind of judge he would be. Unfortunately, we had few other sources of information to which we could turn. With so few writings, no record as a professor, no access to legal memos he wrote while at the Department of Justice, our committee was left with little to go on as we contemplated this nominee. Mr. Estrada's lack of judicial experience was just one factor that made it more difficult to review his way of thinking and to determine what kind of judge he would become if confirmed. I have supported nominees without judicial experience in the past -- I don't want anyone to get the wrong idea -- and I would not hesitate to do so again when appropriate. Although I think it preferable, if possible, to have nominees with judicial experience, I also recognize that many brilliant lawyers with no such experience have become excellent and, in fact, even legendary judges. In this case, it was not the lack of judicial experience itself that concerned me but the fact that this lack of experience, when combined with the lack of information from other sources, left the committee with no real basis to evaluate this nominee. In his letter to me, Judge Gonzales mentioned a number of specific individuals nominated to the Ninth Circuit by President Clinton, nominees I supported despite their lack of judicial experience.
These nominees -- Judges William Fletcher, Marsha Berzon, and Raymond Fisher -- all had distinguished backgrounds and a wealth of background materials for the committee to review, but no judicial experience. Since these specific nominees were mentioned, I thought it would be interesting to note the paths they took to confirmation because the nature of the deliberative process the Senate was able to undertake with these nominees is in striking contrast to what we are confronted with today. William Fletcher, for instance, was nominated on April 25, 1995. His first hearing came on December 19, 1995, about 8 months later. Dr. Fletcher had been a prolific academic writer and a distinguished law professor at the University of California at Berkeley for almost 20 years by the time he was nominated. At his hearing, he had the opportunity -- and he took it -- to discuss articles he had written that were critical of certain Supreme Court decisions and to explain and discuss other articles he had written on a variety of subjects. The Judiciary Committee had access to a wide range of written materials about or written by Dr. Fletcher. And just as importantly, the committee members also had the opportunity to engage in a back and forth with the nominee to learn about his thought process. In contrast to the Estrada hearing, Professor Fletcher answered every question forthrightly and fully. Where Estrada stated he could not answer, Fletcher engaged in real discussion.
Despite this, however, William Fletcher's nomination sat without action until April of 1998, 3 years after his first hearing. And after those 3 years, he was not yet given a vote. Instead, he was given a second hearing. Finally, on October 8, 1998, almost 3 1/2 years after he was first nominated, William Fletcher was finally confirmed. Judge Fletcher, at the time of his nomination, had no judicial experience, but the committee had a wealth of other information about him and written by him to properly gauge his suitability for the Ninth Circuit.
Furthermore, it has been reported that his nomination finally moved forward only after Dr. Fletcher's mother, a Federal judge herself, agreed to take senior status, and after President Clinton and the Republican leadership agreed to appoint a judge, named by Republicans, to a vacancy on the Ninth Circuit. That is a good example of communication and even negotiation between the White House and the Senate on the issue of judicial nominations. I remember it well. And I thank those leaders of our committee who engaged in those discussions. I am not saying that I believe Judge Fletcher's nomination path should become the norm, but since Judge Gonzales mentioned Judge Fletcher by name, it is interesting to note how that nominee, with no judicial experience, fared under the Republican-controlled Senate back then.
Marsha Berzon, another nominee mentioned in Judge Gonzales' letter, was nominated on January 27, 1998. Her first hearing came 6 months later -- not bad -- on July 30, 1998. Again, at that hearing Mrs. Berzon answered every conceivable question about her background, her thought process, and her other issues. Right, she had no prior judicial experience. Then almost a year went by with no further action until she underwent a second hearing and again submitted herself to questioning by the committee. Just to cite one example from that second hearing, Senator Sessions asked Mrs. Berzon to expand upon an answer she had given at her first hearing about the death penalty. Quoting Senator Sessions now: "I remember I asked you about Justice Brennan's decision on the unconstitutionality of the death penalty. He believed that the death penalty was unconstitutional....[a]nd I asked you....how you felt about Justice Brennan's view, and you said you did not like to say what you agree with and what you do not agree with when you haven't had time to think about it. Fair enough. Have you had time now and would you like to comment now?" In her response, Mrs. Berzon stated: "...I certainly have had a chance to think about it and go back and look at the Constitution. And having done so, I would certainly agree that the indications of that document are that the Framers of the Constitution understood that capital punishment would be permitted under the constitution....I was a law clerk to Justice Brennan, as you know, I admire him enormously as a man and a mentor. I did not agree with everything that he said, and I think in particular that I intend to take a more literal view to statutes and to constitutional provisions than he does. It makes me more comfortable, and it is the way I tend to think." It is this back and forth that gives committee members a sense of how nominees think and, therefore, how they will approach the duties confronting them as Federal judges.
By the time Marsha Berzon was finally confirmed on March 9, 2000, more than 2 years and two hearings after she had been nominated, the Judiciary Committee and the Senate had more than enough of a record to judge her nomination, despite her lack of judicial experience. This information is simply not there for Miguel Estrada. Raymond Fisher was the third Ninth Circuit nominee mentioned in the Gonzales letter. Here again is a nominee with no judicial experience but, here again, unlike Mr. Estrada, Raymond Fisher had a depth and breath of other experiences that allowed the committee to fully examine the nominee and his nomination and come to an informed decision.
Raymond Fisher proved himself in many different functions to be impartial, to gain the respect of his peers, and to evidence the temperament required to be a Federal judge. From serving as a Supreme Court clerk to working in private practice, to serving as the head of the Los Angeles Police Department's civilian oversight panel, Fischer was often in the public eye and continuously showed an evenhandedness and ability to work through complex issues that would clearly serve him well from the bench.
Then-mayor Richard Riordan of Los Angeles, a Republican, said that he chose Fisher for the police commission job "because he did not have a political agenda and called the facts as he saw them."
That is exactly what we look for in a nominee. And in the case of Miguel Estrada, I am not convinced that we have it. Additionally, in the Fisher, Berzon, and Fletcher cases, we had volumes of support letters from every conceivable source of every political background and, most importantly, there was not significant opposition as exists in the Estrada case.
Quite frankly, if everyone who knows a nominee comes to the committee with glowing praise and statements that the nominee has perfect knowledge, experience, and temperament to be a judge, it is obviously easier to feel comfortable confirming that nominee regardless of the level of actual judicial experience. Likewise, even a nominee with overwhelming judicial experience might face trouble if a large number of people who had worked with or for that nominee expressed strong concerns about his or her impartiality.
Here, with Miguel Estrada, we have a man with no judicial experience and who has been the subject of a large volume of concern about his temperament and his ability to fairly and impartially judge a given situation. This, in my opinion, presents a problem. The second issue raised in the Gonzales letter involves Professor Paul Bender, Mr. Estrada's direct supervisor at the Solicitor General's office. Specifically, I mentioned in my committee statement on the Estrada nomination that I was concerned about a statement Professor Bender had made in the press that Miguel Estrada is so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way."
In response to this quote from me, Judge Gonzales cited a number of internal Justice Department evaluations indicating that Professor Bender had given Mr. Estrada positive reviews while at the Justice Department. It is relevant to the decisionmaking process when a nominee's former supervisor feels compelled to comment that he is too ideologically driven to be a fair judge, and it is certainly possible at the very least that an attorney could be both an excellent legal scholar and an excellent advocate but be ill-suited for the judiciary, as suggested by Professor Bender.
In any event, I recently asked my staff to contact Professor Bender by telephone and ask him about his comments to the press and his past evaluations of Miguel Estrada. In doing so, my staff discovered some interesting facts. First, I am told that Professor Bender stands by his statements to the press "100 percent" and would say so if asked. Second, according to Professor Bender, the positive evaluations that Judge Gonzales and others cited consisted merely of boilerplate language next to check marks. He stated every employee received the highest evaluation automatically.
And perhaps of most relevance, Professor Bender indicated to my staff that he was already so concerned about Mr. Estrada's ideological bent while supervising him at the Department of Justice that he learned not to rely on his memos and in fact stopped assigning him important work. In other words, as an employee of the Justice Department whose job it was to advocate to the best of his ability, Miguel Estrada's direct supervisor did not trust him to be fair and impartial.
I asked my staff to call Professor Bender and read this to him, and he stands by it. This was not a ast-minute conversion as some have suggested but an ongoing concern.
I have listened to some of the attacks on Mr. Bender. I don't think they reflect well on the Senate. I may not agree with everything Professor Bender has done or advocated within his lifetime, but this is a man with very impressive credentials.
Paul Bender graduated magna cum laude from Harvard Law School in 1957. He served as a law clerk to Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit and then was a law clerk to Supreme Court Justice Felix Frankfurter before embarking on a distinguished career as a professor and in the U.S. Solicitor General's Office. He spent 24 years as a faculty member at the University of Pennsylvania Law School, and he also served as dean of the Arizona State College of Law. He has argued more than 20 cases before the U.S. Supreme Court. As a result, I think it is worth taking his comment into consideration as one of many factors we must look at when trying to determine whether Mr. Estrada can be a fair and impartial judge. The third issue raised in the letter sent to me and published by White House counsel is the fact that I "referenced the fact that Miguel Estrada has been 'accused' of using an ideological litmus test when assisting Justice Kennedy in the selection of his law clerks."
This is true. Specifically, I was concerned that two individuals who had tried to get a clerkship with Justice Kennedy believed very strongly that they had been subjected to a litmus test for being too liberal and had been rejected out of hand as a result. Both individuals had been quoted in the press, and while these accusations were by no means dispositive in my decisionmaking, they were yet another example of comments made by those who know Mr. Estrada, or worked with him, that he is simply too ideological for the bench.
When I first heard about these comments, I was concerned but also wary.
Because the quotes we were given came from anonymous sources in a news article, I wanted to be sure they were accurate.
But having done a bit more research on the subject, I am confident these two individuals truly believe that a litmus test was applied to them. Without countervailing evidence, such as a written record or substantive responses to committee questioning, it is difficult to assuage the concerns raised by these applicants and others.
Now that I have outlined some of my concerns about Miguel Estrada, I want to take a few moments to talk about the general state of the nominations process and what I see as a real lack of consultation between the White House and many Members of the Senate in making these nominations. It is this lack of consultation in the nominations process that has led, I think, many in the minority party to become increasingly concerned about individual nominees, about scheduling, and whether or not there will be any real advice and consent for the Senate.
Early on in the Bush Presidency, I sat down with representatives from the White House and we worked out together a system for nominating district court judges in California that works, and works well. Essentially, we set up one nominating committee for each district in California. Each committee is made up of six members, three chosen by the White House and one chosen by me, one chosen by Senator Boxer, and then Senator Boxer and I choose the third representative together. In other words, each committee is made up of three Democrats and three Republicans, an even number. No name can be forwarded to the President for nomination unless a majority of the commission members agree. So this means that at least one member of each party must consent to every name forwarded to the President for consideration. For each vacancy, the commission submits several names, so the President may still choose the particular nominee. But we have agreed that no individual will be nominated without first receiving at least a majority vote.
This has really worked, Mr. President, and worked well. It is producing well-qualified, nonideological judges for California district courts. These commissions have already worked to produce eight highly qualified, noncontroversial nominees. Five of those have already been confirmed, one more was voted out of committee, and two more were only recently received by the Senate.
Here is the point: The five judges now confirmed spent an average of only 93 days -- about 3 months -- from the day they were nominated to the day they were confirmed.
The process is working. It was my hope when we established this process that the White House would move quickly to establish similar agreements with other States. After all, the Constitution gives the Senate the responsibility of advising the President on his or her nominees, and consenting or declining to consent to those nominations. It is thus our duty to work with each President in helping to select and to judge the qualifications of nominees to the Federal bench.
This advise and consent role should not be taken lightly. Helping to shape the Federal judiciary may well be one of the most important things any Senator will do during his or her term. The quality and nature of the nominees we pass through the Senate will alter the makeup of the courts for years to come, often long after we have retired from this body. Too many of my colleagues have found themselves with no ability to consult on nominees to the district court, or even the circuit court. Indeed, in some instances the White House has completely disregarded the advice or even nominated the candidate most opposed by a home State Senator. In other instances, vacancies kept open by the deliberate inaction of the Republican-controlled Senate of recent years may now be filled en masse, with far more ideological nominees, artificially skewing these courts to the right. This is the environment surrounding the nomination of Miguel Estrada.
We have before us a nominee who was controversial from the very start. When the Judiciary Committee tried to find out more about him, we were stymied at every turn: No written record, no work product, and unresponsive answers to our questions at the hearing.
The Constitution established a system of checks and balances, one that has served this Nation well for more than two centuries. The President is the Commander in Chief, but the Congress declares war and funds the military. The President signs treaties, the Senate ratifies them. The President makes nominations, but we advise him in that role and consent to the nominees themselves. Without any prior advice role, it sometimes becomes necessary for the consent process to become more confrontational, as it has recently. But it is my hope that in coming months we will come together as a Senate -- not as Democrats or Republicans, but one body -- to work through the nomination issues that have so torn us apart over the last decade.
It is also my hope that this President will work with all Senators, as he has worked with me, to establish a framework for producing moderate, qualified judges for every district court in the Nation. It is my hope that we can make these debates about substance and qualifications, not about ideology or partisanship. I cannot at this time support Miguel Estrada for the D.C. Circuit court. As I pointed out earlier, I might very well support him for a district court position. He is 41. This is a 40- or 50-year position. This is a debate that will not end today or tomorrow or in the coming months, unless we can all calm the rhetoric, sit down, and discuss how we can move through the process with greater consultation, greater fairness, and a greater respect for the constitutional role of the Senate.
I thank the Chair and yield the floor.
Sincerely yours,
Dianne Feinstein United States Senator
http://feinstein.senate.gov
Further information about my position on issues of concern to California and the Nation are available at my website http://feinstein.senate.gov . You can also receive electronic e-mail updates by subscribing to my e-mail list at http://feinstein.senate.gov/issue.html
excuse me but this speech is totally hypocritical and absolutely outrageous, near insulting to this reader or anybody who pays attention to these matters, given your staff's recent admission that this is purely being undertaken for political tactics. It is particularly outrageous given the reports from the White House today that Senator Feinstein actually neglected to pose any questions to the nominee over the past couple weeks. her posturing is now clearly a blatant falsehood and the party's positioning in this fashion, not even allowing a vote on a nominee even the Senator, given her statement below, feels is well qualified. Senator Feinstein would be well served to review the Federalist Papers in this regard. Her ready dismissal of the fundamental constructs underlying our constitution and the embedded racial overtones are absolutely sickening.
While I do not believe that for a minute, I would think us Freepers should be able to offset these phone stat's with real one if just a reasonable percentage of us pick up our phone, fax, email or postage stamps. What say you, Freepers, should we not show Ms. "long winded" phoneyness how the real percentages feel?
This big puff of hot air is, evidently, a smokescreen that could have saved everyone a lot of time if the formality had been forgone and the only part that matters to Democrats when it comes to judges, namely the part quoted above, was stated without all the BS......This isn't a new act they're putting on, afterall...the Socialist bloc in Congress has said they will block anyone is is not pro-baby killing.
I can just imagine how the media would be playing this up were the situation reversed, i.e., the same exact candidate but a pro-abortion liberal, with Tom Thumb orchestrating daily, claiming it is all about the Republican Party being anti-Hispanic racists....."What else could it possibly be, with such a highly qualified candidate???" Tom would love the face time, since I'm sure he wants every opportunity to make good on his decision that he can do more to bring down this nation as chief obstructor in the Senate than he could running for President.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.