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Judicial Politics

February 26, 2003 at 12:00 AM EST
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RAY SUAREZ: The man at the center of the Senate fight would be the first Latino to serve on the high-profile, U.S. Court of Appeals in Washington, D.C. Miguel Estrada is a graduate of Columbia and Harvard Law, the Honduran native edited the Harvard Law Review and went on to clerk for Supreme Court Justice Anthony Kennedy. In the ’90s, he was a federal prosecutor in New York and an assistant to the solicitor general, the federal government’s lawyer at the Supreme Court.

The problem isn’t his resume, say Democrats, but that he gave senators insufficient information on his legal views at a confirmation hearing last year. They’ve threatened to filibuster and stall a Senate vote until they get the answers they want. It takes 60 votes to cut off debate. Today the top advocate for the nomination fought back. President Bush spoke to a pro- Estrada group called the Latino Coalition.

PRES. GEORGE W. BUSH: The senators are applying a double standard to Miguel Estrada by requiring him to answer questions that other judicial nominees over time have not been forced to answer. By blocking a vote on Miguel Estrada, some Democrats in the Senate are flaunting the intention of the United States Constitution.

RAY SUAREZ: In the Senate, where the Estrada debate has stretched into a third week, Democrats blame the White House for the delay.

To learn more about Estrada’s views, Dick Durbin of Illinois and others want the administration to release memos Estrada wrote while at the solicitor general’s office. The White House has refused.

SEN. RICHARD DURBIN: He doesn’t have a body of established opinions as a judge. He doesn’t have an abundance of writings reflecting on his philosophy. He has not answered the questions, which we have asked of him. And we are straining to find some information on which to base a reasoned judgment about his nomination to the second highest court in the land for a lifetime appointment.

RAY SUAREZ: Republican Arlen Specter of Pennsylvania said the hold-up is unprecedented.

SEN. ARLEN SPECTER: Opponents to Mr. Estrada have contended that he has not answered questions to their satisfaction in the Judiciary Committee hearings. Nominees are not supposed to give their opinions or judgments on hypothetical cases or matters which may come before the court.

AD SPOKESPERSON: President Bush nominated Miguel Estrada…

RAY SUAREZ: Interest groups on each side have taken the debate to the airwaves.

AD SPOKESMAN: But the radical left says he’s not liberal enough. For the first time in history, they’re blocking his nomination with a filibuster.

AD SPOKESPERSON: Where does he stand on civil rights, worker protections, reproductive choice, the environment? He won’t say.

RAY SUAREZ: The Senate continued the Estrada debate late today but it’s unclear when the stand-off will end.

RAY SUAREZ: And we pick up the debate in the Senate now with two of the leading members of the Judiciary Committee: Republican Orrin Hatch of Utah is the chairman, and Charles Schumer of New York is the ranking Democrat on the subcommittee on the courts.

Sen. Schumer, why are the Democrats keeping this nomination from going to the floor for a vote?

SEN. CHARLES SCHUMER: Well, first, that is incorrect. We are not keeping it from going to the floor for a vote. The constant debate on the floor is because the Republican leadership has kept this issue on the floor, but what we’re saying is that we are not going to vote for Mr. Estrada or allow it to be voted on because he hasn’t revealed any of his views– not about specific cases, that is against the canons of ethics– but things that the American people have a right to know.

What is his view of the first amendment, should it be expansive or contract? What is his view to the right of privacy; what is his view of the commerce clause? These are fundamental issues that this man, if he gains appointment to the court, will be making for thirty or forty years because he’s a young man and this is a lifetime appointment. And the founding fathers intended specific and detailed questions to be answered. They intended not simply to say the man went to Harvard Law School; appoint him. They wanted to know what his judicial views were.

Let me conclude by quoting my friend Orrin Hatch who said in 1997 when there were liberal Democratic nominees up there determining which of President Clinton’s nominees will become activists is complicated and will require diligent and extensive questioning of nominees. We asked Mr. Estrada a whole lot of questions. He answered by simply saying I will follow the law. I can’t answer that because I haven’t seen the briefs. No nominee that I have come across has had so little information, has given so little information about how he feels about the major issues that he will have huge power over, should he become a judge.

RAY SUAREZ: Sen. Hatch, how do you respond to Sen. Schumer’s statement?

SEN. ORRIN HATCH: Well, first of all, it took 505 days to even have a hearing. In other words, the Democrats are so interested in his answers that they delayed him for almost a year… well, a year-and-a-half. Secondly, they asked questions that should not be answered. Their candidates, when President Clinton sent them up, did not have to answer these types of questions other than to say they would follow the law — to say, well, what’s his view on the first amendment? My goodness, those cases come before this court all the time.

He answered…he answered all kinds of questions. And, by the way, they demanded documents that cannot be given by the administration because they’re highly privileged documents regarding appeals, certiorari petitions and amicus curia briefs. That’s all they asked for. They knew they couldn’t get them so they set up a red herring so that they could hold this man up.

Last but not least, I notice that your clip cited Sen. Durbin of Illinois. By the way, Sen. Durbin of Illinois wasn’t even at the hearing, which was conducted by Sen. Schumer. They conducted the hearing. They determined what would be asked at the hearing. He answered every question as well if not better than their own judge nominees when they came before me as chairman and to make a long story short Sen. Durbin wasn’t even there. He did… he was one of two who wrote written questions. Every one of them could have done that and asked even more questions. Those written questions were answered in detail. And that’s all… that’s all who asked written questions.

Now, what they’re doing for the first Hispanic candidate ever nominated to the circuit court of appeals for the District of Columbia, they’re filibustering him because frankly he’s a Republican conservative who is an independent thinker and I believe they just don’t want him on the circuit court of appeals for the District of Columbia.

RAY SUAREZ: Sen. Schumer, Miguel Estrada was working for the solicitor general when he generated many of the documents you’re requesting. What about Sen. Hatch’s point that they simply either shouldn’t or can’t be turned over because of the nature of the communications?

SEN. CHARLES SCHUMER: Well, first, they’re not privileged. There is not a single court case that has ever said they’re privileged. Second, they have been turned over by such people as Judge Rehnquist, Judge Bork –

SEN. ORRIN HATCH: That’s not true.

SEN. CHARLES SCHUMER: — Reynolds — when they were up for nomination, I’ll give you the for instance on Judge Rehnquist. People asked him about his views on six or seven areas. Please give us those documents. He turned them over. And let me ask a broader question. Put 100 average Americans in a living room. And ask them whether we should nominate someone to this court, the second most important court in the land, who refuses– my good friend Orrin Hatch here says he answered questions.

If you answer questions by saying I’m not going to give you an answer, that’s not the answer… that’s not a real answer. When you say that you can’t discuss your general judicial philosophy about the First Amendment because you might have to rule on the First Amendment, well, for over 230 years nominees to the Supreme Court and other courts have discussed those issues when senators have asked.

Have we asked every nominee? No. Have we asked a whole lot of nominees? Yes. And the reason it’s so important with Mr. Estrada is as that little film showed, Dick Durbin saying, he’s never been a judge so we don’t know how he feels because we don’t have a record that way. Many of the other nominees are law professors who have lots of writing. And the fact that simply he’s a conservative and we don’t like him, as Orrin Hatch well knows, I have voted for 99 of the 106 nominees we voted on. The vast majority of those 99 were conservative. The only people I don’t want to see on the court are people so far over to the extreme that they would turn back the clock to the 1890s.

Now is Estrada this way? Many around him have said yes. Some around him have said no. The one way to find that out is to get these documents, which are not privileged, which have been released by judge after judge and nominee after nominee, they don’t have to be released. That is true. But there is no rule against releasing them. Why can’t Miguel Estrada, what is he hiding — why is he afraid to release these documents which can be legally released?

RAY SUAREZ: Let’s hear from Sen. Hatch.

SEN. ORRIN HATCH: My gosh, that’s all gobbledygook. The fact of the matter is their specific court request was with some of the most privileged documents in the solicitor general’s office and seven of the former living and now living but former solicitors general said those documents shouldn’t be given under any circumstances and four of them are Democrats. Three of them worked for President Clinton. The fact of the matter is that’s a red herring. It’s gobbledygook.

The specific request by Sen. Leahy and now Sen. Schumer, was to give his recommendations on appeal, certiorari and amicus curia matters. They have never ever been asked for before, never been given by any administration. The few times that documents have been given have been where there has been an alleged crime or an alleged possible crime, and they have been very specific documents that did not involve these highly privileged areas of law. That’s a red herring. It’s just a red herring to try and defeat this man.

Now one last thing: Sen. Schumer conducted this hearing. The Democrats said that it was fair. They had every opportunity to ask every question they wanted to and they did and he answered most all of them. The transcript is that thick. There are very few circuit court nominee hearings in history that have a transcript that even is half of that. They have really been pouring it on this Hispanic man who has the highest rating from the American Bar Association, unanimously given, their gold standard, he has the highest reputation in the law.

This is a fellow who has risen to the top of the appellate bar in this country, has argued 15 cases before the Supreme Court, winning ten of them. This is a fellow who has done that with a disability, a speech impediment, and my gosh, he’s being treated in a different standard than we treated any of the Clinton nominees or any of the Carter nominees and I was here for both.

RAY SUAREZ: Sen. Schumer, a double standard. Are you treating Miguel Estrada differently than other nominees?

SEN. ORRIN HATCH: He sure is.

SEN. CHARLES SCHUMER: You know, Orrin Hatch voted against a Hispanic nominee named Barquette; he said she’s too much of an activist judge out of the mainstream.

SEN. ORRIN HATCH: Well, then vote; vote up or down. I voted up or down.

SEN. CHARLES SCHUMER: No one ever accused Orrin Hatch of being anti-Hispanic. Because he voted against that judge because he thought that judge was too far to the left. But now all of a sudden that the president is nominating hard right nominees and the Republicans control the Senate they don’t even want us to ask a question. It is true that there’s a thick transcript. It’s filled with questions and Miguel Estrada answering…

SEN. ORRIN HATCH: Filled with answers.

SEN. CHARLES SCHUMER: Well, here’s an answer. You judge, TV audience, when you say, “I can’t answer that because I haven’t seen the briefs” when you ask him what’s your opinion of Roe V. Wade, he says your personal opinion…when Dianne Feinstein asked him, he says, I cannot answer that.

When I asked him a question that Jeff Sessions, your Republican colleague, asked Mr. Piaz, a Hispanic judge who was held up for 1500 days because they thought he was too liberal, he asked him, name a Supreme Court case you like, name a Supreme Court case you don’t like, Piaz answered forthrightly. Mr. Estrada said I can’t name even past cases which he wouldn’t have to rule on….

RAY SUAREZ: Let me get a quick response there from Sen. Hatch.

SEN. CHARLES SCHUMER: Let me just finish the point, which he wouldn’t have to rule on in the future. He said I can’t those. He was told not to answer questions. He did it dutifully. If he doesn’t want to reveal the documents, answer the questions. If he doesn’t want to answer the questions, reveal the documents.

SEN. ORRIN HATCH: That is just simply not true. He answered every question and he answered it the way he should have. He said, look, on Roe v. Wade I will uphold the law; that’s my obligation. That’s the best answer you can give on that. He said he would do it regardless of his own ideological preferences, regardless of his own feelings on the matter.

SEN. CHARLES SCHUMER: Just what Clarence Thomas said. Just what Clarence Thomas said.

SEN. ORRIN HATCH: Well, then that’s just what every one of your Democrat nominees said to the same question.

SEN. CHARLES SCHUMER: No. They gave their opinions.

SEN. ORRIN HATCH: The fact of the matter is, is that when we held hearings for the Democrat nominees of President Clinton, not one of them has had this kind of treatment, not one of them has been asked these kinds of questions expecting answers when those matters might come before the court. Not one of them has been asked to produce documents that they couldn’t produce because he doesn’t control that; the administration does, and they shouldn’t produce those documents. Not one of them has been treated like this. There’s a double standard here. By the way…

RAY SUAREZ: Sen. Hatch, I’m going to have to put an end to it right there.

SEN. ORRIN HATCH: One last thing, I did vote against Barquette, but let me tell you she had a vote. This man’s not even given a vote up and down because they’re filibustering for the first time in history. If that happens, there’s going to be Katie bar the door. It will ruin this system. The system will be broken…

RAY SUAREZ: Senator Orrin Hatch of Utah and Sen. Charles Schumer of New York state….

SEN. CHARLES SCHUMER: Every Democratic nominee answered the questions. This gentleman refuses. We’re asking…

SEN. ORRIN HATCH: He answered every question.

RAY SUAREZ: Thanks a lot, gentlemen.