"The D.C. Circuit: The Importance of Balance on the Nation's Second Highest
                                     Court"

                               September 24, 2002

     Thank you, Chairman Schumer. I appreciate the opportunity to say a few
words at this subcommittee hearing.

     Since the Democrats took over the Senate and the Judiciary Committee last
June, my colleague and good friend from New York has been arguing that we on the
Committee should be upfront about our role in the advice and consent process ?
that we should not engage in the slight-of-hand of talking about one issue while
voting on another. I agree with him to the extent that we should speak and act
forthrightly, and we should not stoop down to the politics of personal
destruction in order to justify a vote that is based on something else.

     Unfortunately, I think that is where our agreement ends. Several weeks ago
on the floor, I had my friend as a captive audience because he was serving as
the Presiding Officer, and I explained my view that being honest and open
neither requires, nor excuses, the overt injection of raw politics into the
advice and consent process. I explained then my opinion, based on 26 years of
experience, that the only way to make sense of this process is to begin with the
assumption that the President's constitutional power to nominate should be given
a fair amount of deference, and that we should defeat nominees only where
problems are truly significant.

     I believe that to the extent ideology is a question in judicial
confirmations, it is a question answered by the American people and the
Constitution when the President is constitutionally elected. The Senate's task
of advice and consent is to advise and to query on the judicious character of
nominees, not to challenge by our naked power the people's will in electing who
shall nominate.

     The premise of this hearing reminds me of a nickname that some clever
college freshman gave to one of his required first-year courses: Introduction to
the Obvious. If the point of this hearing is to show that the D.C. Circuit
currently includes four judges appointed by Democrats and four appointed by
Republicans, then we hardly need to convene a Senate Subcommittee to figure that
out. And, if the further point is made that adding one Republican appointee
will result in five Republican appointees and four Democrat appointees, then I
still can't imagine the hearing being disrupted by reporters running from the
room yelling STOP THE PRESSES.

     But I know that we are not here to explore the obvious with a sense of
discovery. So I suppose the real question is: What should we do about this?
How should the Senate act when faced with courts that have either a balance or
an imbalance between the number of Republican and Democrat appointees? Should
we refuse to confirm any new judges to those courts unless they belong to the
right political party? Should we wait until one of the judges steps down, and
then wait even longer for there to be a President who happens to belong to the
same political party as the President who appointed that judge? Well, these
options seem to be perfectly ludicrous to me.

     The only possible answer is to accept the reality that Presidents have the
power to appoint judges, and that the balance in the judiciary will change over
time as Presidents change, but much more slowly. The variables of Presidential
elections, judicial retirements, circuit size, and many other factors will mean
that perfect balance will be achieved rarely if ever. That is simply how the
system works ? and has worked, since the Judiciary Act of1789. Our role of
advice and consent is meaningful, and we must take it very seriously, but it was
never intended as the power to second-guess the President or simply to
substitute our judgment for his, and in doing so usurping the will of the
American people.

     Mr. Chairman, you know better than anyone that I am sincere about this, and
that my track record proves it. Your report issued last Friday to the press
shows that I voted against only one nominee in the last ten years. As a matter
of fact, you could go back a lot further than that, because that's the only one
for at least the last 22 years. And to clarify, I did so not on the basis of
politics or ideology, but rather out of respect for the traditional role of
home-state Senators in the selection of District Court nominees. When both
home-state Senators of that nominee informed me that they were voting no, I felt
I had no choice but to respect their judgment. For what it's worth, I think
that vote was quite an unfortunate episode, but I nevertheless feel that I acted
in accordance with Senate practice.

     In keeping with the spirit of openness and honesty, I must say this:
although I know how this hearing is being billed, I am left to wonder why we are
not having a hearing about the scandalous 9th Circuit, or about the procedural
scandals that are plaguing the 6th Circuit. Why, I ask myself, are we having a
hearing about the DC Circuit just two days before the nomination of Miguel
Estrada. Coincidence? Surely not.

     When I was Chairman I ended the practice of having witnesses lined up to
eviscerate good nominees. It was clear that the times had changed and that the
base art native to the Potomac of destroying reputations had been too well
perfected. I am glad that Chairman Leahy has concurred in this practice. I am
disappointed that we are having this hearing because, to be frank, it strikes me
that we are regressing, that this subcommittee is a just thinly veiled attempt
to lay the foundation to oppose one of the most intelligent, accomplished and
respected lawyers ever named to the D.C. Circuit Court. It seems to me that it
would have been more forthright to name this hearing what it is: the Còntra
Estrada Hearing.

     Now let me express my very real concern for the build up that I see
happening to attempt to harm the nomination of a brilliant young man who came to
this country at age 17 from another country knowing very little English and who
has made his parents proud.

     In one sense, I agree that there should be concern for balance on the D.C.
Circuit. As Chairman and founder 12 years ago of the nonpartisan Republican
Hispanic Task Force ? which, despite the name, is made up of both Republican and
Democratic Members -- I have long been concerned for the inclusion of Hispanics
in the federal government. Without trumpeting the over-used word "diversity," I
have made it my business to support the nominations of talented Hispanics for my
entire career in the Senate. I am sorry that not even the desire for diversity
will trump the reckless pursuit of ideology in judicial confirmations.

     I have a special affinity for Hispanics and for the potential of the Latin
culture in influencing the future of this country. Polls show that Latinos are
the hardest working Americans, that they have strong family values and a real
attachment to their faith traditions. In short, they have reinvigorated the
American dream and I expect that they will bring new understandings of our
nationhood that some of us might not see with tired eyes.

     I also know that Hispanics come in many colors and that they have left
behind countries filled with ideologues that would chain them to particular
political parties. I know that they share a common sense appreciation of each
other's achievements in this country without any regard whatsoever to ideology,
over which some Americans have the luxury of obsessing.

     I am concerned with balance on the D.C. Circuit, but of a real sort, not
the kind to be discussed here today. Like President Bush, I think it is high
time that a talented lawyer of Hispanic descent is represented on the second
most prestigious court in the land. The D.C. Circuit hears federal cases no
other court hears, and has a special role in the enforcement of the Voting
Rights Act of 1965. Yes, I think that it's time that a Hispanic sat on that
court.

     I also think it is time that we unmask the way that Miguel Estrada's
nomination is being treated, and the lengths that his detractors are going to
place hurdles in its path. For months I have been sounding the alarm of the
influence of the special interest groups on this Committee. I have been
increasingly ashamed of the axis of profits that demands that judicial nominees
be voted down for a palimpsest of reasons. While the game plan is unvaried, the
quarterbacks change, and now it is the liberal Hispanic groups that are on the
field. They ought to be ashamed of themselves. They have sold out the
aspirations of their people just to sit around schmoozing with the power elite.

     I have repeatedly warned against what is going on behind the scenes. But I
have done it so often that perhaps it is time to try it with new words. Well
here is a Spanish word: Confabular.