JIM LEHRER: The end of the Miguel Estrada nomination to be a U.S. Court of Appeals judge in Washington. He was nominated two years ago; the last attempts at votes in the Senate in July were blocked by Democrats.
Today in a letter to President Bush, he withdrew his name. We have reaction from two members of the Senate Judiciary Committee -- Jeff Sessions, Republican of Alabama, and Charles Schumer, Democrat of New York. I spoke with them earlier this evening. Gentlemen, welcome.
SEN. JEFF SESSIONS: Good afternoon.
SEN. CHARLES SCHUMER: Hi.
JIM LEHRER: Senator Schumer, do you consider the Estrada withdrawal a victory for your side?
SEN. CHARLES SCHUMER: Not really. I mean the... we continue to dispute who should be on the bench. The real victory for our side would be is if George Bush, instead of just nominating nominees through a ideological prism, were to do what the founding fathers intended, sit down, talk to the Senate, see if we could come to some agreements on who ought to be judges.
Certainly they wouldn't be judges that I agree with on most issues, but sit down and have the advise-and-consent process work. I don't think this is a victory per se at all.
JIM LEHRER: Then what is it? What is it then for you?
SEN. CHARLES SCHUMER: Well, we sort of... we believe at least -- I know Jeff would disagree with this -- that we're enforcing the Constitution, that for a nominee to come before us and just simply refuse abjectly to answer questions about their judicial philosophy would mean that if we were to let such a nominee through, it would mean there'd be no advise and consent and the president would get what he wanted all the time, which is not what the founding fathers intended. It's not a victory in the sense that he's still going to continue to send us nominees with similar philosophy to Estrada. They may answer the questions more forthrightly, but we still haven't solved this dispute.
JIM LEHRER: Senator Sessions, how would you characterize the Estrada withdrawal today? What does it mean to you?
SEN. JEFF SESSIONS: It means it's a terrible and dark day for the United States Senate. And this nominee, for the first time in the history of this republic, as a result of a sustained filibuster, a circuit or district judge was blocked. Miguel Estrada, after over two years of waiting, finally felt he had to give his attention to his private practice and his family. He could not continue in this uncertainty, and it was a very dark day.
I believe the tradition of the Senate and the implications clearly of the Constitution are that a confirmation of a judge should be by a majority vote. Over 55 senators were prepared to vote for Miguel Estrada. A minority 45, for the first time in history through steadfastness, under the leadership of Democratic leader Tom Daschle, just flat changed the ground rules of Senate confirmations and did something I think we're going to regret for a long time.
JIM LEHRER: Now you're referring specifically to the fact that the Democrats required there be 60 votes in order to get this nomination to the floor, correct?
SEN. JEFF SESSIONS: That is correct. There were 55 votes to confirm, which prior to this year, would have confirmed the nominee. But they blocked an up-or-down vote by carrying out the filibuster rule, and I think that's a very, very grim thing. It should not occur. It shifts the balance of power, weakening the independence of the courts, strengthening the hand of the Congress, and weakening the hand of the president in a constitutional alteration of power that we've never done before, and we should not do now. And I hope there'll be some reevaluation of this on the other side.
SEN. CHARLES SCHUMER: Let me talk a little bit about the balance of power. Of the 145 judges... 149 judges brought before us, President Bush has gotten his wish on 145.
He and the Republican side seem to feel the only way there's a fair balance is if President Bush gets all 149. Miguel Estrada... in a sense, I feel bad because the White House told him not to answer questions, not to give up certain documents that would show his views on key issues that affect millions of Americans, workers' rights, and the right to privacy, and the First Amendment, and environmental rights.
JIM LEHRER: And these are documents... excuse me. These are documents that pertain to his duties as assistant solicitor general earlier, right?
SEN. CHARLES SCHUMER: That is right. You know, Jim, if you applied for a job, if any American applied for a job and refused to fill out the questionnaire, of course they wouldn't get the job. Now, what Jeff Sessions is saying is there shouldn't a filibuster. Well, he didn't object when the Republicans controlled the Senate and they never even brought people up for a vote. They were blocked in every way, just as the filibuster is blocking people.
President Clinton nominated... I think it was 54 people who were never even brought up for a vote -- a large majority of those never brought up for a hearing. That's why we had so many vacancies on the court of appeals of D.C. I'm not saying this is tit for tat. It isn't. But there's sort of high dudgeon on the Republican side when it's a filibuster, but "hey, this is just fine when we never, even though they were nominated for four or five years, bring them up for a hearing."
You know, each side does what it thinks it should do to create a balance here. The only tool we would have of blocking any of President Bush's nominees, even those who are way out of the mainstream, is the filibuster. I don't think that that is wrong. In fact, my guess is that the founding fathers were looking down on the Senate today, they'd smile. They'd say the Senate is defending its rights and not just being a rubber stamp for every single nominee that President Bush sends us.
JIM LEHRER: Senator Sessions, what about that -- if the Democrats had not employed the filibuster, what tools would have been available to them, if in fact they objected to any particular nominee of President Bush's?
SEN. JEFF SESSIONS: Well, a minority in the Senate has never been able to vote down a judicial nominee. During President Clinton's time, there was never a filibuster in committee, which the Democrats attempted now. And eight years of President Clinton's tenure, not one single nominee was voted down in committee on a partisan vote, as was done when the Democrats had a majority in the Senate for a little less than two years. And neither did we have a filibuster on the floor of the Senate.
SEN. CHARLES SCHUMER: That's because they didn't bring up 54. Of course they voted for every one they brought up, but they didn't bring up 54 who never got a vote.
JIM LEHRER: Let Senator Sessions finish there, please.
SEN. JEFF SESSIONS: And his suggestion that Miguel Estrada didn't answer the questions is not true. Miguel Estrada did answer questions, and he did not turn over the internal memorandum of the U.S. Department of Justice Solicitor General's Office, for which he worked, because they were not his documents.
They were documents of the Department of Justice, the law firm for which he worked. He had no ability to turn those over. Every living solicitor general said they should not be turned over, including the four living Democratic attorney... solicitors general. This is a bogus argument. This man was rated "well qualified," the highest possible rating by the American Bar Association, unanimously. He was at the top of his class at Harvard, he clerked for the U.S. Supreme Court. He was in the solicitor general's office five... six years, and five of them under the Clinton Department of Justice, and he got the highest possible rating for the Clinton Department of Justice.
JIM LEHRER: Let's move...
SEN. CHARLES SCHUMER: And his superior in the Clinton Justice Department said, and then was lambasted in a very mean way... he said, "this man is so far to the right that he shouldn't be a judge." And yet when we asked him the questions, here were his answers. Let the audience decide. He said, "I can't answer these questions because it might violate Canon Five of the legal ethics, which says you can't talk about a pending case."
Of course you can't talk about a pending case, but when I asked him, me, I asked him question, "what's your view of the First Amendment and how expansive it should be? What's your view of the right to privacy? What's your view of some of these other things?" That's the answer he gave. Nominees have always answered questions like that under every administration. But because -- I believe at least -- that his views were so far to the right, they didn't want to let those views get out.
JIM LEHRER: All right, let's... yes, go ahead.
SEN. JEFF SESSIONS: Why would the ADA, a liberal group historically, rate him unanimously well qualified if he were a right wing extremist? That is not true.
SEN. CHARLES SCHUMER: Let me just say...
SEN. JEFF SESSIONS: He is an intellectual lawyer who believes in following the law as written, not using the power of a judgeship to impose political views.
SEN. CHARLES SCHUMER: The ADA rates people on how legally excellent they are -- he is a very smart man -- but they don't get into the person's views. That's the Senate's job. That's the job we were doing.
JIM LEHRER: Okay, let's move on now. There are two other nominees to appeals courts, two nominations that are being held up -- one of Priscilla Owen, who's a current member of the Texas Supreme Court; another is William Pryor, who is now the attorney general of Alabama. Are you and your fellow Democrats, Senator Schumer, going to continue to hold them up, as well?
SEN. CHARLES SCHUMER: Yeah, I think we voted on Priscilla Owen about two or three or maybe even four times by now and we voted her down. We brought up Estrada -- he withdrew not because... I think they brought him up seven times and it was the same vote each time. And I think the vast majority of our caucus believes that, in the case of both Priscilla Owen and of Attorney General Pryor, that they are so far out of the mainstream that they shouldn't be judges. And I don't see any of the votes changing.
Now, they may bring them up and ask us to vote two, three, four times. Every time they bring a nominee up a second or third or fourth time, it's the same exact vote. I would hope that the president would say, well, I can't get agreement on these people. Let me sit down and come to some people we can agree on." If they say we'll never agree on anybody, how come we've approved 145 out of 149?
JIM LEHRER: Senator Sessions, what do you think is going to happen now to Priscilla Owen and William Pryor, and what do you think they ought to do, if anything?
SEN. JEFF SESSIONS: I think we need to continue to fight for them, and I intend to do so. And I know Majority Leader Bill Frist intends to do so, and so does the Republican conference. Priscilla Owen likewise was at the top of her class, made the highest possible score on the Texas Bar Review, was unanimously rated well qualified by the ABA. Bill Pryor was editor-in-chief of the Tulane Law Review, and has proven time and again that he stands for truth and law, regardless of political consequences. He has the support of the top African-American leaders in the state of Alabama. Liberals and conservatives support him in the state. They know he's a man of integrity and ability, and it's just unconscionable that those two people of such extraordinary ability and qualifications are being blocked. I can't imagine why they would pick those nominees to block.
JIM LEHRER: I think it was a fair statement to say, senators both, that Estrada's withdrawal means only that the war continues?
SEN. JEFF SESSIONS: We have got to continue to battle for these nominees. They're the right nominees. President Bush is entitled to appoint judges who follow the law, not make the law, who are going to not strike down the Pledge of Allegiance, turn 170 death penalty cases -- overturn those -- and those kind of things. I think it's time for some sanity in the courts, and that's what the Bush nominees stand for.
SEN. CHARLES SCHUMER: I would just repeat that we've approved 145 out of 149. These have by and large been very conservative judges. But the bottom line is when some of them are so far out of the mainstream, we will continue to stand up.
Most Americans want moderate judges, not judges, as President Bush actually said he would nominate, in the view of Scalia and Thomas, the two most conservative members of the Supreme Court.
JIM LEHRER: So as I said, the war continues. Thank you both very much.