AFTERNOON SESSION OF PANEL II OF A HEARING OF THE SENATE JUDICIARY COMMITTEE TOPIC: JUDICIAL NOMINATION CHAIRMAN: SENATOR CHARLES SCHUMER (D-NY) WITNESS: MIGUEL ESTRADA, D.C. CIRCUIT NOMINEE LOCATION: 106 DIRKSEN SENATE OFFICE BUILDING TIME: 2:13 P.M. EDT DATE: THURSDAY, SEPTEMBER 26, 2002

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SEN. SCHUMER: (Sounds gavel.) Okay, ladies and gentlemen, the hearing will come to order. Well, actually, since Senator Feinstein was the last questioner, we're really up to a Republican. But, as you can see that they have no questions to ask you, Mr. Estrada.

MR. ESTRADA: Senator Schumer, in relation to the last question that Senator Feinstein did ask me, there is something else I want to say about it, if I could.

SEN. SCHUMER: Please.

MR. ESTRADA: This goes to the question that you asked me. And as I -- SEN. SCHUMER: Which question? Let's just be --

MR. ESTRADA: This is -- both your question and her question in relation to the hiring of clerks for Justice Kennedy, what my role is --

SEN. SCHUMER: Yes.

MR. ESTRADA: And I realized as I was trying to drink my Coke that she read a statement from a magazine which contained an implicit -- I guess I'll call it an assumption -- that I should have challenged out of deference and respect for Justice Kennedy. Justice Kennedy is one of my mentors, and I have a great deal of personal affection for him. I would not want anybody to think that this man who is at the pinnacle of his legal life is a dupe who can be sort of moved one way or another by 22-year-olds. When I was his law clerk, I knew him as a man who knew his own mind. And when I have some role in talking to possible law clerk candidates for him, my view is to look for somebody who will work well for him and who will do his bidding after he comes to his own judgment. And I mention that last point because I also --

SEN. SCHUMER: I didn't think anything you said before, when you answered explicitly to me, and then the same way to Senator Feinstein, contradicted that in any way. But you are welcome to make the record clear.

MR. ESTRADA: Well -- and -- right. And -- but I also want to make clear that as I thought about that and that premise there is a set of circumstances in which I would consider somebody's ideology -- if you want to call it that -- in trying to interview somebody for Justice Kennedy, whether on the left or on the right. And that is to say if I thought that there was somebody who had views that were so strongly held on any subject, whether the person thinks that there ought not to be a death penalty, or whether the person thinks that the income tax is not constitutional, or anything -- if I think that the person has some extreme view that he would not be willing to set aside in the service of Justice Kennedy, I would make sure that Justice Kennedy would know that. And I guess it is possible for somebody to think that he was turned down in a sense on the basis of his politics. But that would not be the case. It would be on the basis of a judgment that whatever class of politics he might have he would not be willing to put them aside in the service of the justice.

SEN. SCHUMER: Okay, that is understood. That is not the question I had asked you, as you know.

MR. ESTRADA: Right. But as I thought about the number of times that I -- that you asked your question, I wanted to make sure that I was not understood as saying that I was not taking the ideology of somebody into account, because from time to time I do interview somebody who is 22 or 23 who has some very strongly felt views about how the world ought to run. And if those views are based on a political world view, whether it be left or right, that he would not be willing to put aside in the service of Justice Kennedy, I would consider that as a very strong point for why the justice ought not to hire him --

SEN. SCHUMER: Right. But let me just repeat the question though. Have you ever told anyone -- I want to ask it again -- that you would not -- I am going to read you the exact question I asked you this morning: Have you ever told anyone that you do not believe any person should clerk for Justice Kennedy, because that person is too liberal, not conservative enough, because they didn't have the appropriate ideology, politics or judicial philosophy, or because you were concerned that person would influence Justice Kennedy to take positions you did not want him taking? Now, you answered that unequivocally no to me earlier this morning.

MR. ESTRADA: Right.

SEN. SCHUMER: Has that answer changed?

MR. ESTRADA: No, it has not, if we understand --

SEN. SCHUMER: Okay.

MR. ESTRADA: -- that the explanation that I just gave does apply to it. It's --

SEN. SCHUMER: But you would still say no to that specific question, which whatever you added later?

MR. ESTRADA: Subject to the caveat that if I concluded that somebody has strongly held views of the left or of the right that would make him unsuitable as a law clerk for Justice Kennedy, because he would not then follow the justice's wishes and instructions, it is possible I suppose that I could have said that that was reason --

SEN. SCHUMER: Now, wait. I'm getting a little confused now.

MR. ESTRADA: I just want to make sure that I understand the question.

SEN. SCHUMER: The question is pretty clear. It's the same exact question I asked this morning: Have you ever told anyone that you do not believe any person should clerk for Justice Kennedy, because that person is too liberal, not conservative enough, because that person did not have the appropriate ideology, politics or judicial philosophy, or because you were concerned that person would influence Justice Kennedy to take positions you did not want him taking? That's a yes or no question. That's not speculative about your recommendation.

MR. ESTRADA: Well, and my answer is I have taken into account the ideological leanings of a potential law clerk only when it appears to me -- and this is something that I don't have a final say on, but I do tell Justice Kennedy -- that this person has a strongly held view on a subject that he will not be willing to put aside in the service of the justice. I mean, sometimes -- this is why I am concerned about understanding what the question is exactly.

SEN. SCHUMER: The question is very clear.

MR. ESTRADA: And I am hoping that it will --

SEN. SCHUMER: The question is not what your thought process is, sir. You are as good a lawyer as I am -- probably much better. The question did not ask your thought process. The question did not ask did you recommend or not recommend people. It said -- and I'll give you one more chance, if you want to retract your answer this morning, which you twice today did not -- this afternoon did not. And you brought this subject up -- I didn't -- this afternoon: Have you ever told anyone that you do not believe any person should clerk for Justice Kennedy, because that person is too liberal, not conservative enough, because that person did not have the appropriate ideology, politics or judicial philosophy, or because you were concerned that person would influence Justice Kennedy to take positions you did not want him taking? Yes or no?

MR. ESTRADA: I am concerned, senator, about the compound aspect of the question --

SEN. SCHUMER: It's "or" -- it's "or" -- it would be any of those.

MR. ESTRADA: All right. I -- now that you have drawn that to my attention, it is possible that interviewing a candidate -- I can't think of any now -- but it is possible that I may have come to the conclusion that the person's ideology was so strongly engaged in what he thought as a lawyer that he would not be able to follow the instructions in the chambers as set forth by Justice Kennedy.

SEN. SCHUMER: How many times did you do that?

MR. ESTRADA: I cannot think of any single example now.

SEN. SCHUMER: You cannot.

MR. ESTRADA: But I -- but it is one of the aspects that I would explore in trying to find whether the law clerk candidate was suitable for Justice Kennedy. I can't -- I don't have a number in my head as to the number of candidates whom I've interviewed over the years. I cannot think of an example right now. But as I listen to the list of categories, separated by the "or," it occurred to me that I had not sufficiently focused on whether I had told somebody that it was because of ideology. And I can think of a circumstances in which I might --

SEN. SCHUMER: Ideology or it's so far over that they wouldn't obey the opinions?

MR. ESTRADA: That --

SEN. SCHUMER: Because now you are saying two different things again.

MR. ESTRADA: I thought I was saying the same thing, Senator Schumer. I'm sorry. I was saying if I made a judgment that the person had a strongly held ideological view of subject X, that he would not recognize his appropriate role as a law clerk, following the instructions of Justice Kennedy, and to help him get his work done. If I thought that that was the case, and if the reason was his ideology, I mean, I think I would have told Justice Kennedy for a person. It is possible that I may have told somebody else, since when he -- this is actually the area of my concern -- I speak to Justice Kennedy about these issues. Obviously I tell him my impressions of what I think of the candidates. If the impression is this person has a deeply committed view that the death penalty never should be applied, and Justice Kennedy is the circuit justice for a death circuit -- all of the states in the circuit for which he is a circuit justice have the death penalty, if I recall -- this is somebody who would not be a very useful law clerk for Justice Kennedy. It is possible in talking to the justice -- I don't recall all of my conversations with him -- that I would have said this person is an ideological opponent of the death penalty, and therefore if you take that as an example -- i.e., my conclusion that the person would not follow the instruction of the justice -- I would have said what your question said.

It is possible as well that in talking with some of the former law clerks who do this for Justice Kennedy, who are, as I pointed out earlier, both Democrats and Republicans, that I would have said something of that nature. So that as I parse through the wording of the question, it occurs to me that without the qualifier I can't give you an unqualified answer. I mean, I cannot tell you and assure you that I do not view it as my job. And I think it would be insulting to the justice to try to find law clerks of a particular political persuasion, because that is not what I am tried to do to him. I am trying to help him, not to hinder him..

SEN. SCHUMER: Senator Feingold has to go. I want to come back to this in a little bit.

SEN. RUSS FEINGOLD (D-WI): Thank you, Mr. Chairman. And welcome to the committee, Mr. Estrada. Between August 1992 and December 1995, the police in Chicago arrested more than 42,000 people and issued more than 89,000 dispersal orders pursuant to an anti-loitering statutes ostensibly targeted at gang members. The statute was challenged and was found to be unconstitutional in both the Illinois Supreme Court and again in the United States Supreme Court.

You filed an amicus brief on behalf of a number of groups in support of the statute, and you argued in favor of it on the radio. I happen to believe that the United States Supreme Court got it right when it struck down the statute for being unconstitutionally vague. As the court noted, under the statute, even if a gang member and his father are loitering near Wrigley Field to see Sammy Sosa leaving the ballpark, if the purpose of the father and son is not apparent to an onlooking police officer, the officer shall order them to disperse, and perhaps even arrest them. The breadth of the ordinance that you defended troubles me, as it allowed the police almost unfettered discretion that could be used to literally pick up -- pick on people an officer might not like. What is your response to the concern that was expressed about the effect of this kind of ordinance on the spirit of the community? In arresting over 42,000 people in three years, didn't the police teach the youth of the community that sitting in a park while dreaming of the future, or chatting on a street corner with a friend might get them arrested and locked up with a criminal record?

MR. ESTRADA: Senator, we are talking about the ordinance that was passed by the city of Chicago in 1992. And, as you know, that was passed -- that was an ordinance that had a great deal of community support in the city, and support of Mayor Daley. Before the case got to the Supreme Court, it had been, as you mentioned, in the state courts of the state of Illinois. And one of the key rulings in the case was made not by the U.S. Supreme Court but by the Supreme Court of Illinois, which interpreted the language in the ordinance very broadly.

Part of the argument that I was trying to persuade the courts to accept was the proposition that the Illinois Supreme Court read the "no apparent purpose" section of the ordinance a little bit too broadly, in the sense that if you read it in a common-sense fashion it was clear that what the city council meant was for no apparent purpose other than to engage in gang activity. And that was the view of the ordinance that was also taken by the solicitor general's office in the Clinton administration, which filed a brief on the same side I did, and I think by 31 states of the union.

When the case got to the Supreme Court, because of the limited power of the Supreme Court of the United States, the majority of the Court felt bound to accept the construction of the statute or standard by the highest court of a state, and therefore read it -- read that language without the common-sense qualification. There was no opinion for the court on the controlling points in the Supreme Court of the United States. The decisive votes were cast by Justices O'Connor and Steve Breyer, and they wrote separately in an opinion to point out that the outcome of the case turned on the construction given by the state courts to that language, and that the language would have been more narrowly construed, and probably would have been okay.

SEN. FEINGOLD: Well, let me just comment that when I read that there were over 42,000 arrests for loitering I did become concerned that the statute might be working too well. And the Supreme Court of Illinois said the ordinance provides such ambiguous definitions of its elements that it does not discourage arbitrary or discriminatory enforcement. So obviously I am troubled by your defense of the statute, but I heard your answer.

Let me ask a different kind of question about this. The vast majority of law enforcement officers put their lives on the line every day to protect all of us, and of course they discharge their duties honorably. But we also know that in some cases there are officers who do not. We have all heard about the beating of Rodney King in California, the racial profiling of the New Jersey state troopers and the abuse of Abner Louima in New York. What we sometimes forget is these are not the only incidents of misconduct. Last year the Department of Justice Civil Rights Division, Criminal Section, received over 10,000 complaints, most of them concerning law enforcement misconduct, that resulted in about 2,500 FBI investigations.

So I was a little surprised to learn that during your appearance on the radio show "Justice Talking" in 1999, you stated the following. Quote: "There's no question in my mind that the country has changed quite a great deal in the last 30 or 40 years and that we have somewhat fewer worries now about interracial interactions between white PD and minority members of the public," end of quote.

Do you really believe that racial profiling and racially- motivated law enforcement misconduct are no longer problems in this country today?

MR. ESTRADA: No, I do not. I am -- I will once again emphasize I'm unalterably opposed to any sort of race discrimination in law enforcement, Senator, whether it's called racial profiling or anything else.

The comment that you make, as you point out, was in the context of pointing out that these were laws that have been put on the books with significant support from minority communities, people that felt that the presence of a visibly lawless element of gang members dealing in drugs and engaging in other types of similar activity was something that ought to be addressed by the city council.

I know full well that we have real problems with discrimination in our day and age. But I also know that as I was a young child growing up in a foreign country, there were clips that the local TV station had to illustrate what the racial situation was in the United States. And for some reason, they always chose to take those sad days where you had the law enforcement officers with firehoses and dogs coming after the members of minority communities. And I know that that is in the recent past. And I think we have to go much farther. But I think, thinking about that and thinking about where we are now and how far we have come, I couldn't help but point out in that radio broadcast that, as many problems as we may have now, we have sure come a long way.

And when we have people of all racial backgrounds telling their elected representatives that gangs are a problem and that they don't feel safe in the street, there ought to be lawyers who are willing to go into court and make sure that all of the appropriate ethically reasonable legal arguments that could be said in defense of the popular judgment are tendered to the court.

SEN. FEINGOLD: I appreciate your observation. I've got to tell you, though, that based on what my constituents have told me, I'm not at all sure that African-Americans and Hispanic-Americans in my state feel as comfortable today as they might have 30 years ago with law enforcement. I suppose it could depend on the part of the country.

But the issue of racial profiling, I think, is very much on the minds of many people in our country, and I know that your comments about having fewer worries must mean that you still take that into account, because I think it is a severe problem that frankly needs legislative attention as well as the enforcement of current law.

When you appeared on "Justice Talking," you were debating the validity of the law with Harvey Grossman, who also happened to live in one of the Chicago neighborhoods affected by the law. You said, quote, "One of the things that we do as a society, by reason of being a democracy, is that we vote on what we think is a good idea, see if it works, and if it doesn't, then we scrap it. But what we do not do is take the person that lost all of his arguments in the debate and try to bring the courts to trump on his side," end of quote.

I'd like you to explain that comment. I believe that the president of the United States and this Congress have a very important function. I also believe that our Constitution ensures that just because Congress passes a law that the president then signs, it does not mean that opponents of that law cannot bring a challenge in court if they believe they have a valid argument.

I just passed a law where that's happening everyday. In fact, one of the primary roles of the court system is to protect, as Alexis de Tocqueville once said, against the tyranny of the majority. Correct me if I'm wrong, but didn't the opponents of this law merely carry out their civic duty in challenging the statute in court? Do you believe the court should be open to individuals who believe their rights are being violated by government action?

MR. ESTRADA: Absolutely, Senator. And the statement that you quoted, I think, does reflect what I think is an appropriate balance, whether the body that has passed the law is a city council or whether it is this Congress. If I am sitting as a judge, if I am fortunate enough to be confirmed, I have to take into account, when a challenge comes into the courtroom, the proposition that laws come to courts with a presumption of constitutionality.

SEN. FEINGOLD: But then why did you feel in this case that the thousands of people who were arrested in the National Black Police Association and the Hispanic Law Enforcement Association were wrong to use the courts to challenge the constitutionality of the statute?

MR. ESTRADA: The point I was making, Senator Feingold, is that I thought that many of the arguments being urged for the proposition that we ought not to have this ordinance were more of a legislative character than of a judicial character, which is not to say that they were not good arguments or that they were not arguments that reasonable people could make, but in the context of a debate in the radio where we were not arguing the case in court, many of the arguments being made were perfectly reasonable things for people to say but were the sort of things that are usually given to legislative bodies and not to courts.

I, of course, adhere to the view that anybody who thinks that his rights have been violated, whether under a Constitution or a statute, has a legal right to go into court and every expectation of finding a judge who will take his claim seriously.

SEN. FEINGOLD: Thank you, Mr. Estrada. Thank you, Mr. Chairman.

SEN. SCHUMER: Thank you. Before we go to the next witness, I just -- since you had opened this up again, Mr. Estrada, I want to clarify this, because I'm unclear. And this was in reference to a question you had that I had asked you. I'm going to read you the passage from "The Nation" magazine. Please listen carefully, and I'll read any part you want again.

It said, "Perhaps the most damaging evidence against Estrada comes from two lawyers he interviewed for Supreme Court clerkships. Both were unwilling to be identified by name for fear of reprisals. The first told me, quote, 'Since I knew Miguel, I went to him to help me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. Miguel told me, quote, "No way. You're way too liberal," unquote.

"'I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. When I asked him why I was being ruled out without even an interview, Miguel told me his job was to prevent liberal clerks from being hired. He told me he was screening out liberals because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay rights decision in a case known as Romer (sp) v. Evans which struck down a Colorado statute that discriminated against gays and lesbians.'"

Which parts of that statement are false? All of it? You said all of it earlier today. MR. ESTRADA: I don't have any reason to think that any part of it is true, Senator. But what I'm saying is I don't know any of the circumstances of what the actual interview was. And what people take away from it and what they think they recall is not necessarily what I thought actually happened. And my concern is I am certain that I have never used an ideological test to screen anybody for Justice Kennedy.

SEN. SCHUMER: Then you couldn't have said, "No, you're way too liberal," right?

MR. ESTRADA: Unless I knew the person through an interview or some other interaction and I knew that he had an ideological commitment to some issue that would make him --

SEN. SCHUMER: Well, wait a second.

MR. ESTRADA: -- an unsuitable law clerk.

SEN. SCHUMER: This morning I asked you a question about that. You denied it unequivocally. Senator Feinstein went over two hours later, read you this very passage, and you denied it unequivocally. Are you changing your answer now? Did you say yes or no to this clerk, "No way, you're way too liberal"? You've denied that twice.

MR. ESTRADA: I -- Senator, I am certain that I never said that to anybody.

SEN. SCHUMER: Thank you.

MR. ESTRADA: But I will not -- but I have to tell you that it is possible that I said to somebody, including Justice Kennedy, "Mr. X has an ideological view of this area of the law, and therefore he would be unsuitable." It's possible.

SEN. SCHUMER: That is not the question. I didn't ask you what you said to Justice Kennedy. You did not also say -- you didn't tell this interviewee that you didn't like it that a liberal clerk influenced Justice Kennedy to side with the majority and write a pro- gay rights decision in Roemer v. Evans?

MR. ESTRADA: Senator, I am certain that I don't know who was working for Justice Kennedy when Justice Kennedy had that case in front of him --

SEN. SCHUMER: I didn't ask you that question, sir. I asked you if you said -- you're a very accomplished man; you know the question I've asked. I said to you, did you say to this clerk -- did you talk to him that you didn't like the fact that a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro- gay rights decision in a case known as Roemer v. Evans? Yes or no? This does not take a peroration. This takes a yes or no answer if you're being truthful with this committee. SEN. HATCH: Now, wait a minute.

MR. ESTRADA: The best I can tell you --

SEN. SCHUMER: Please, let him answer.

SEN. HATCH: Mr. Chairman, wait a minute, Mr. Chairman.

SEN. SCHUMER: This question was brought up earlier today.

SEN. HATCH: Wait, wait just -- I understand. But let me --

SEN. SCHUMER: And Mr. Estrada had suggested that he wanted to speak about it again. I want to clarify that, and then you can come back as soon as I'm finished clarifying. Mr. Estrada?

SEN. HATCH: (Inaudible.)

SEN. KENNEDY: Let's let the witness answer.

SEN. SCHUMER: I asked a yes or no question.

SEN. HATCH: It's not a yes or no question.

SEN. SCHUMER: Yes, it is.

SEN. HATCH: That's the problem. It's a very unfair question.

SEN. KENNEDY: Let the witness answer.

SEN. HATCH: First of all, the person isn't known. He's anonymous. Now, we have a rule in this committee that we've always abided by. Senator Biden was one of the chief enforcers of it; I agree with it. You don't confront a person with anonymous statements that are from one side of a person's mouth that he doesn't seem to recall --

SEN. SCHUMER: He answered --

SEN. HATCH: -- and take advantage of him that way. I think it's wrong.

SEN. SCHUMER: Let me say that this morning, when asked this question, Mr. Estrada didn't say, "I don't know the person," didn't say, "I'm not sure." He said no. I'm asking again. Okay? Did you say to any clerk -- doesn't matter who it is --

SEN. HATCH: This anonymous person.

SEN. SCHUMER: -- that -- that is correct. It's written in an article here. Maybe the article's wrong. But I think this committee --

SEN. HATCH: The point is, maybe the characterization is wrong.

SEN. SCHUMER: My friend, I think the committee's entitled to an answer.

SEN. KENNEDY: Let's let him answer the question.

SEN. HATCH: Let's not just take advantage of an unsolicited, I think, improper question about an unknown person --

SEN. SCHUMER: Okay. Well, the record --

SEN. HATCH: -- which we've never done before in this committee.

SEN. SCHUMER: Oh, we've done it --

SEN. HATCH: If you've got a person, have him come out and say what he has to say. Then we'll find out what he did or didn't say to him.

SEN. SCHUMER: Let me repeat my question. Did you say to any law clerk that you were upset because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay rights decision in a case known as Roemer v. Evans?

MR. ESTRADA: Senator Schumer, what I've been trying to say is that I don't know every conversation I had with every human being in my life, and the statement that you're reading comes from a magazine that says that this is a person that I interviewed who I don't -- you know, I have no idea who this person could be. I don't know what the circumstances could be.

And as I said to Senator Feinstein this morning, conceivably I could have said something like that in the nature of a joke. And in answer to your question, I already -- I don't know the circumstances. And I'm sorry --

SEN. SCHUMER: Are you retracting your answer this morning that you said no?

MR. ESTRADA: I said to Senator Feinstein, as I recall, Senator Schumer --

SEN. SCHUMER: To me in my question, I asked you a general question, but related to that, and you said no. MR. ESTRADA: And that's part of what I brought up. And as I said earlier today, after you highlighted the disjunctives in your question, including telling any person who is a living person whether I had considered the issue of ideology, I would have to change my answer. Frankly --

SEN. SCHUMER: And say --

MR. ESTRADA: -- I have not focused on all of the disjunctives in your question, because, as I explained to you, it is sometimes appropriate for me to advise the justice if somebody has an ideological view of the law that would make him a bad law clerk.

With respect to "The Nation" excerpt that you just quoted, I think the first time I heard it this morning was when Senator Feinstein read it to me. And my best and only answer to that is it is not the type of thing I would say seriously. And I have no reason to think I ever said it to anybody.

But I don't know the circumstances, because it is a statement that I said to somebody at an unknown time, in an unknown place, who never knew who the person is that I said something. And I just don't have that sort of a memory.

SEN. SCHUMER: Well, but in all due respect, sir, twice, when asked right on point this morning, you said no. And I think we have some credibility problems here.

MR. ESTRADA: Well, if I did that --

SEN. HATCH: Oh, come on.

SEN. SCHUMER: I'm going to call on Senator Edwards.

SEN. HATCH: Gee whiz.

SEN. SCHUMER: Senator Edwards.

SEN. EDWARDS: Do you want to give Senator Hatch a chance?

SEN. SCHUMER: Oh, did you want to -- go ahead, Senator.

SEN. HATCH: Well, listen, I do, but I'm going to defer to Senator Edwards. But I'd just like -- if you would just yield to me for this one statement.

SEN. SCHUMER: Please.

SEN. HATCH: You know, this is really offensive. In all honesty, he's being very badly treated by this committee. And I think he's one of the few who's ever come before the committee who's had this type of treatment. I go back to Senator Biden's comment. Here's what he said. He said, "It's my hope and expectation that a thorough hearing, continued investigation and hearing, can be completed and that we will -- not my expectation -- we will vote on Tuesday night at 6:00."

Quote -- this is all quote -- "But let me conclude by suggesting once again the nominee has the right to be confronted by his accuser. So any accusation against any nominee before any committee which I chair that is not able to be made public to the nominee will not be made known to the Senate unless the individual wishes to do it all by themselves. Then it's known to the nominee. This is not a star chamber.

Now, I think, you know, there's a -- there's a question of fairness here. And to say there's a question of credibility because he doesn't know who in the world you're talking about. He's -- he's probably talked to hundreds of people, and -- and you don't know how a person has characterized the meeting from their perspective. And I think it's very unfair to expect him to confront somebody that isn't known. And that's always been the rule of this committee, as far as I know. It wasn't just Senator Biden speaking there. We've all tried to abide by that rule.

Now, I'll be glad to ask some questions after Senator Edwards.

SEN. SCHUMER: Yeah. I would simply say that I think the question was completely in bounds. It was not a surprise question. It was in a published magazine article.

SEN. HATCH: So what.

SEN. SCHUMER: And -- and I think it's a fair question because the whole issue we're discussing here is -- one of the issues we're discussing are the views of the nominee, how much ideology matters. He said now that he would recommend to Justice Kennedy that certain people's ideology kept them off limits --

SEN. HATCH: When they're extreme --

SEN. SCHUMER: Exactly.

SEN. HATCH: That's what all of us would --

SEN. SCHUMER: So it does matter --

SEN. HATCH: -- we would follow that, every one of us.

SEN. SCHUMER: And I think that it was -- I think these questions are on point, particularly in light of the fact that the record is so -- we don't have much of a record. But let me go to Senator Edwards.

SEN. EDWARDS: Thank you, Mr. Chairman. Good afternoon, Mr. Estrada. MR. ESTRADA: Good afternoon, Senator.

SEN. EDWARDS: I have a couple of areas I'd like to ask you about. This -- I think this general debate that you had in Chicago has been talked about some already, but let me use some language that you used. You said that -- you said to the lawyer that you were debating that he should -- now I think I'm quoting you now correct, please correct me if I'm wrong -- that he should explain exactly what words in the Constitution as opposed to his own inclinations say that the city can't do this. I just want to take that quote for a minute and ask you about a couple of specific examples.

In 1963, as you well know, the United States Supreme Court unanimously said that Earl Gideon could not be -- was a poor -- a poor -- an indigent man, couldn't be sentenced to five years in jail unless he was offered a lawyer. Can you tell me, to use your language, exactly what words in the Constitution created that right for Earl Gideon?

MR. ESTRADA: Yes, Senator, I think, as the court explained in the opinion, the Sixth Amendment gives the right in all criminal prosecutions to the accused to have the assistance of counsel.

SEN. EDWARDS: But what words in the Constitution said that he was entitled to that right, and to have it paid for by the -- by the government, which I believe is what the decision said?

MR. ESTRADA: Well, that's what the -- that's what the course said in the Gideon case. It --

SEN. EDWARDS: What words in the -- I'm sorry, I didn't mean to interrupt.

MR. ESTRADA: --to have the assistance of counsel.

SEN. EDWARDS: Right. What words in the Constitution created that right?

MR. ESTRADA: The words I just quoted from the Sixth Amendment.

SEN. EDWARDS: Okay. And to be paid for by the government, where does that right come from?

MR. ESTRADA: Well, the court reasoned in the Gideon case that if you have the right to have the assistance of counsel and you cannot afford it on its own, then this is a -- the Constitution -- (inaudible) -- give you the right, the government that is bound by that constitution must make sure that you have the right that the constitution gives you, and therefore pay for that lawyer.

SEN. EDWARDS: But the language of the Constitution refers to the right to counsel, not to the right to have that counsel paid for by the government, if I'm not mistaken, is that correct?

MR. ESTRADA: I don't know that I can do justice to this issue, which took several pages in the Gideon case. I frankly have always taken it as a given that that's -- the ruling in the case, and have never as an academic exercise gone back and looked at all of the possible arguments or even any of the briefs in the case. I take that as a given that the court -- that the court ruled that Sixth Amendment does require government to pay for counsel for indigent defendants. As I recognize that the Supreme Court has said in numerous occasions in the area of privacy and elsewhere that there are unenumerated rights in the Constitution, and I have no view of any sort, whether legal or personal, that would hinder me from applying those rulings by the court. But I think the court has been quite clear that there are a number of unenumerated rights in the Constitution. In the main, the court has recognized them as -- as being inherent in the right of substantive due process and the liberty clause of the Fourteenth Amendment.

SEN. EDWARDS: The reason I ask you about that -- I understand that those -- that that has been the interpretation of the Supreme Court -- but you used the specific language in your -- in your interaction during this debate, that you asked your opponent to say exactly what words in the Constitution, and as I guess you well know, Mr. Estrada, the -- in the Gideon case, and Miranda, for example, another important United States Supreme Court decision, there are no exact words, to use your language, in the Constitution that says there's a right to remain silent, that there's a right to all those rights that are enumerated in Miranda. And the same thing which you just made reference to would be true in the decision of Roe v. Wade, which created a constitutional -- recognition of a constitutional right to a woman's right to choose. Now, all those are cases where the exact language of the Constitution didn't create those rights. You would acknowledge that, I assume.

MR. ESTRADA: Well, I -- I mean, I don't know that I have gone back and looked at each of the examples that you cited, but I do acknowledge that at least it is true of the Roe line of cases and others, some of them similar and some others in other areas, that the Supreme Court has repeatedly recognized that there are unenumerated rights in the Constitution. It is also the case that -- that a judge who is engaged in the judicial function by coming to a case of this type must of course weigh the language of the Constitution. The Constitution is a fairly old document, and that is relevant to our purposes because we have some 535, if not 540 volumes of Supreme Court cases which, if they haven't answered every question under the Constitution, they have certainly mapped out major areas and given us answers to many, many of the details. And I would not want to have this -- this question in the abstract without making clear that in my view, of course, I was not saying in this radio debate that the appropriate conduct for courts is to be guided solely by the bare text of the Constitution because that is not the legal system that we have.

I do recognize that if you're talking about the role of courts, as opposed to people that go on NPR and have a debate on an issue of policy, courts are required to consider not only the text of the document but the 530-odd volumes of Supreme Court cases. There are lower court cases. There are contemporaneous and later documents. There is a whole host of interpretative aid, cannons of construction, that bear on the answer, on the right answer to a case like Gideon. And so that's why I don't want to give the impression that I was giving a recipe for how courts might go about their business, because that's -- that's not what I think.

SEN. EDWARDS: Are you a strict constructionist?

MR. ESTRADA: I'm a fair constructionist, I think.

SEN. EDWARDS: Do you consider yourself a strict constructionist?

MR. ESTRADA: I consider myself a fair constructionist. I mean, that is to say I don't think that it should be the goal of courts to be strict or lax. The goal of courts is to get it right. And that may be in some cases to interpret the text as it is written because other consideration of every element of help that there is to give the text meaning tells us that that's what the lawmaker intended. But it may be appropriate to give it a more general construction. I think we can have laws and constitutional texts of both types. It is not necessarily the case in my mind that, for example, all parts of the Constitution are suitable for the same time of interpretative analysis.

SEN. EDWARDS: Wait -- excuse me. I'm sorry, I didn't mean to interrupt you.

MR. ESTRADA: No, no , no. I --

SEN. EDWARDS: Were you finished?

MR. ESTRADA: The example I was going to give is, you know the Constitution says, for example, that you must be 35 years old in order to be our chief executive. There is not a lot of hard study that has to go into figuring out whether somebody is in compliance with the 35 year old requirement. You can read it and say, "I'm 40 and I can run." There are areas of the Constitution that are more open-ended. And you adverted to one, like the substantive component of the due process clauses, where there are other methods of interpretation that are not quite so obvious that the court has brought to bear to try to bring forth what the appropriate answer should be. SEN. EDWARDS: Let me ask the same question a little differently. The president gave a speech last night at a fundraiser where he referred specifically to your nomination among others, and he said for a stronger America, we need good judges. We need people who will not write the law from the bench, but people who -- and I'm quoting him now -- "strictly interpret the Constitution." Do you fall within the president's definition?

MR. ESTRADA: I have not spoken to the president about this or any other subject. I don't know what he meant. If I had to take his text as a statute, I would want to know more about the circumstances in order to figure out whether I can answer your question. I mean --

SEN. EDWARDS: You haven't been asked that question by anyone during the course of your nomination process?

MR. ESTRADA: No. I was asked very few similar questions, and they generally had to do with how I go about generally interviewing the Constitutional and statutes, and I gave the answer that I gave you a few minutes ago.

SEN. EDWARDS: Let me ask you one last thing, and I know that I'm -- I'm running past my time, if I can, Mr. Chairman.

SEN. SCHUMER: Please.

SEN. EDWARDS: This is something also that you said earlier on a radio show, and I'm quoting you now. You said, "One of the things we do as a society, by reason of being a democracy, is that we vote on what we think it's a good idea to see if it works, and if it doesn't, then we scrap it." Then you said, "But we do not do is take the person that lost all his arguments in the debate and try to bring the courts to trump on his side." Now, I want to ask you about an example. Let's suppose a town said that -- passed a referendum saying they were going to bar women from serving on juries. Now -- and a woman, or women, a group of women wanted to challenge that law. Would that be a legitimate challenge, in your judgement?

MR. ESTRADA: Of course.

SEN. EDWARDS: So you recognize that the court itself has an enormous responsibility in our government, interpreting the law, and enforcing the law, and enforcing the Constitution?

MR. ESTRADA: Absolutely.

SEN. EDWARDS: So this language that you used before -- what did it mean? What we do not do is take the person who lost all of his arguments in the debate and try to bring the courts to trump on his side. Tell me what you meant by that.

MR. ESTRADA: It means that we have a healthy debate in the legislature about the policy pros and cons and whether the law is a good idea. And, the party that, in the judgment of the majority has the better of the argument wins. Now, that is a forum for the policy argument. What we do not do is then take policy, as opposed to legal arguments, and run into court.

In the example that you gave me, I can foresee what the obvious legal challenge would be. It would be a violation of equal protection. There's clearly a law that applies that would be the basis for the challenge. We were having, in the exchange that you cite, a radio debate on a city ordinance in which I thought part of what was being said was a policy argument as to why this is a bad idea as opposed to why this ought to be declared unconstitutional by the court. And in my mind, there is a very clear difference between the types of arguments that are suitable for a body like this, and the types of arguments that are suitable for bodies like courts. Courts take -- take the laws that have been passed by you and give you the benefit of understanding that you take the same oath that they do to uphold the Constitution, and therefore they take the laws with the presumption that they are constitutional. It is the affirmative burden of the plaintiff to show that you have gone beyond your oath. If they come into court, then it is appropriate for courts to undertake to listen to the legal arguments -- why it is that the legislature went beyond his role as a legislator and invaded the Constitution.

But they're different types of arguments that play in different forums, and I was pointing out that for the policy you go to your fellow citizens, and for the legal arguments you go to the court.

SEN. EDWARDS: My time is up. I would just point out that this was a law that you were debating that was ultimately held, I believe, unconstitutional by the Supreme Court. Thank you, Mr. Chairman. I appreciate it. Appreciate the time.

SEN. SCHUMER: Thank you, Senator Edwards. And now we have had two Democrats go in a row. We are on our second round. Everyone has asked questions the first time. So I'll defer to my friend and colleague, Senator Hatch.

SEN. HATCH: Well, thank you, Mr. Chairman. Now, let's go back to this anonymous apparently accusation in one of the most liberal magazines in the country that you are supposed to, out of all the thousands of people you met be able to conjure up just who it is. And apparently this person is griping because they were either unsuitable for the Supreme Court clerkship job, or for some reason or other didn't get it. And it appears to me that they hold it against you. Now, assuming that it's even true, as I understand it you are saying that you, in interviewing potential clerks for Justice Kennedy, that you didn't want people on either extreme.

MR. ESTRADA: That's right.

SEN. HATCH: You didn't want extremely left-wing people, and you didn't want extremely right-wing people.

MR. ESTRADA: That's right. I want people who understand that their job is to help Justice Kennedy do what he wants, and that they don't bring an independent point of view on how the court should vote. They are doers and helpers for Justice Kennedy. He is the person who has gone through this process and sits on the Supreme Court. It is his judgment that is being voted on. I mean, he is the person who has the vote -- not the law clerk.

SEN. HATCH: Right. Well, I read the one quote from Senator Biden -- I'll read another one in Lexis/Nexis. "Committee Chair Joseph Biden, according to a staff" -- now, he was chairman of this committee at the time -- "Committee Chairman Biden, according to a staff, felt strongly that he was not going to circulate some anonymous charge." Now, Mr. Estrada, you have been asked by a number of senators on the other side about your role in the selection of Supreme Court law clerks. Do you feel that you were fair in examining these people?

MR. ESTRADA: Absolutely, senator.

SEN. HATCH: Did you look at their capabilities and whether or not they would be suitable for the justice?

MR. ESTRADA: That is the only thing that I look for, senator.

SEN. HATCH: I presume the justice talked to you about what type of people he'd like to have work with him?

MR. ESTRADA: That's correct.

SEN. HATCH: What were the criteria basically, if you could just do it 30 seconds or so.

MR. ESTRADA: He wants the smartest people he can find that will do his bidding.

SEN. HATCH: That would agree with him and do what he asked them to do, right?

MR. ESTRADA: Right, right, exactly.

SEN. HATCH: Did he say, "I want conservatives," or "I want liberals"?

MR. ESTRADA: No.

SEN. HATCH: Did he say he wanted any kind of ideology?

MR. ESTRADA: No.

SEN. HATCH: Just the smartest people that he could find --

MR. ESTRADA: That will do his bidding.

SEN. HATCH: That would do his bidding. In other words, help him do his job on the Court the way he thinks it ought to be done -- right? That's what you mean by "bidding"?

MR. ESTRADA: Yes.

SEN. HATCH: Now, I don't want you in a game of gotcha here with some anonymous set of sources. And I can tell you this: even if they surfaced and somebody accused you of this, man, I would put great suspicion on their accusations, because they didn't get the job. And so undoubtedly there's -- assuming that the anonymous accusations were made, they didn't get the job, and naturally they're griping about it. They were accepted. And the easiest target would be you. So let me just say this: You have bipartisan support for your nomination from some of the top lawyers in the country -- from the top people who served in the government, both Democrats and Republicans. And I pointed out bipartisan support for your nomination, and I noted -- I think it's worth noting that you yourself seem to be blind to partisanship, when offering your support to well-deserved colleagues. You already mentioned your support for a staffer of Senator Leahy to clerk for Justice Kennedy.

MR. ESTRADA: Yes, I did, senator, and I -- as I said, my role usually is simply to talk to people who live in this area so that I can give my views to the justice --

SEN. HATCH: Did you ask that staffer whether that staffer was liberal or conservative?

MR. ESTRADA: I knew she was liberal.

SEN. HATCH: You knew she was liberal?

MR. ESTRADA: Yes, I knew she was liberal. I -- you know, she is -- actually she is left of center. She's a moderate person.

SEN. HATCH: I understand -- I understand she's an extremely brilliant staffer, right?

MR. ESTRADA: Excuse me?

SEN. HATCH: She's an extremely brilliant staffer, right?

MR. ESTRADA: Yes. She is --

SEN. HATCH: And you recognized that.

MR. ESTRADA: She is a brilliant lawyer.

SEN. HATCH: And you recommended her, even though she was Senator Leahy's staffer, a known Democrat, and more liberal than you.

MR. ESTRADA: She later came to work for Senator Leahy. At the time she was working with me in the Clinton Justice Department, and I worked with her while I was working in the Clinton Justice Department, and tried to get her into Justice Kennedy --

SEN. HATCH: Well, I remember --

SEN. LEAHY: If the senator would yield just a moment, this is fascinating to me, because I had never knew -- had any way of knowing what her politics were or what her attitudes were -- left, right or center. Apparently you had a far tougher screening method than I did, so I -- one of the reasons for coming to these hearings. And now you are telling me things about my staff that I never knew, Mr. Estrada. MR. ESTRADA: Well --

SEN. LEAHY: -- I give you credit for finding these things out.

SEN. HATCH: Okay, I remember you contacted me to voice your support for the nomination of Aliberto Jose Jordan (ph), a Clinton nominee to the U.S. District Court for the Southern District of Florida.

MR. ESTRADA: Yes, I did, senator.

SEN. HATCH: He was a colleague from your days clerking at the Supreme Court --

MR. ESTRADA: Yes, he was.

SEN. HATCH: -- of whom you thought highly, and who you thought should be confirmed -- right?

MR. ESTRADA: Yes, I did, senator.

SEN. HATCH: Mr. Jordan currently serves on that court with much distinction. You also indicated support for a wide variety of others to me that were more liberal than you, that were Clinton nominees. So you have a record of bipartisanship. I don't want you bullied by this committee. And you don't have to take it, as much as you are in a very tenuous difficult position. Now, what I am saying, in closing, I want to point out that your actions are not actions of a right-wing ideologue. They show instead that you are a person who gives credit where credit exists, and where it's due, because it's the right thing to do -- and not because of some hidden agenda that you might want to advance.

I'd like to spend just a few minutes on a couple of other things that have been raised. I would like to ask you a few questions about the anti-gang loitering cases that you worked on that have been raised here. And although some have attempted to mischaracterize the statutes that were at the crux of these cases as racially discriminatory, my understanding is that the exact opposite is true: that these statutes were enacted to protect the quality of life of low-income minorities whose neighborhoods were too often devastated by drug violence. Is that right?

MR. ESTRADA: That was my impression of them, senator, and that was one of the reasons why I thought it was worthwhile to give my time for free --

SEN. HATCH: That's what you were told too, wasn't it?

MR. ESTRADA: Exactly. SEN. HATCH: Okay. For example, according to a 1997 report issued by the Clinton Justice Department, gangs have, quote, "virtually overtaken certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and life- style changes among law-abiding residents," unquote.

Another Reno era Justice Department report concluded that from the small business owner who is literally crippled because he refuses to pay protection money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking; the harmful impact that gang violence is both physically and psychologically debilitating. And, Mr. Estrada, you told us that you were involved in the City of Chicago v. Morales case at the request of the Chicago mayor.

MR. ESTRADA: Well, the legal department of --

SEN. HATCH: Well, the department of the Chicago mayor, Mayor Daley, right?

MR. ESTRADA: Of the city, yes. Yes.

SEN. HATCH: Okay. Now, Mayor Daley, one of the primary opponents -- proponents of the Chicago ordinance you defended -- let me just read you a few quotes about the ordinance by Mayor Daley, whom the New York Times described as "the law's fiercest advocate." And those are quotes. I think these quotes will dispel any notion that the law was somehow intended to hurt rather than help minority residents of Chicago.

In November of last year, Mayor Daley defended his anti-loitering law in the Chicago Sun Times by offering, quote, "I tell you one thing -- those drug dealers and gang bangers are terrorists too," unquote. He has repeatedly explained that his anti-loitering law is designed to protect residents from gang activity. In June 1999 he explained, quote, "It's the average person on a block. It's a senior citizen. It's an 8-year-old girl going to school or trying to get to the bus stop, or someone trying to go to the store. They can't go there. The gangs and drug dealers own the corner, and that is what this is all about," unquote. And again in January of 2000 he said, quote, "These aren't middle class communities. These are poor communities. People want a right to survive. It's as simple as that," unquote. I could go on and on. But, instead, Mr. Chairman, I would like to submit for the record a list of quotes by Mayor Daley in support of the anti-gang loitering ordinances.

SEN. LEAHY: Without objection, so ordered.

SEN. HATCH: And the one thing I find ironic is that the persons who criticize the anti-gang loitering statutes rarely live in the neighborhoods plagued by chronic gang activity. Now, let me just see here. Although Senator Kennedy earlier made the point that community leaders objected to these ordinances, my understanding is that these ordinances were enacted in direct response to pleas by members of gang-infested communities. As Mayor Daley explained, quote, "We held hearings all over the city to find out what community leaders wanted. Their message was very clear: Do whatever you have to do to satisfy the court, but get those gang bangers and dope dealers off our corners," unquote. Benny Meeks (ph), head of the Southwest Austin Council on Chicago's West Side lived in a neighborhood where gang members routinely sold drugs on street corners and inundated passers-by. According to Meeks, quote, "If we don't use this law as a tool, how are we going to get these guys off the corner? What about the constitutional rights of my neighbors whose kids have to walk by that corner every day on their way to school?," unquote.

Another Chicago resident, 74-year-old Emmett Moore (sp), saw his house sprayed with bullets during a gang turf war. Referring to the anti-gang loitering law, he said, quote, "The Constitution is supposed to protect my rights too. What's a more basic right than feeling safe on my property or being able to walk on my street?"

The Annapolis ordinance was an even more explicit example of underprivileged minority residents taking the initiative to combat crime in their neighborhood. Under the Annapolis ordinance, an area could be designated as a, quote, "drug-loitering-free zone," unquote, only if a neighborhood association or resident first submitted a petition to the city council -- is that right?

MR. ESTRADA: That's my recollection of it, senator.

SEN. HATCH: How did you get involved in the Annapolis case?

MR. ESTRADA: Because of my work in the Chicago case, I got a call by the county -- sorry -- excuse me -- by the city lawyer for the city of Annapolis. He had passed -- his city had passed this drug loitering ordinance. The city was sued in court. He tried to keep up with the litigation, but he didn't have a very large staff, and the NAACP, which brought the suit, as was pointed out earlier, had the help of a very large Washington law firm that had come in to do the other side of the case for free. So he was feeling a bit outgunned, and he called somebody here in Washington by the name of the State and Local Legal Center, which tries to help states and localities with issues like that. And since they knew I had done the brief for free in the Chicago case for the National League of Cities, he called -- they gave him my name, and he called me.

SEN. HATCH: Mr. Estrada, some critics have decried the Annapolis case, because it challenged the NAACP's standing to bring action against the ordinance. But isn't it true that the decision to challenge the NAACP standing was made by other lawyers before you ever even got involved in the case? MR. ESTRADA: That is right, senator. By the time that I was asked to come and do the case what was left of the briefing was the reply brief. The argument had already been made in the opening brief, and of course it would be appropriate if the argument had any (colorable ?) basis for me to make any reasonable ethical argument that I could to support the argument that had already been made by the city lawyers in the opening papers. As I explained I think to Senator Kennedy earlier, I thought that it was important as part of that standing argument that the fact that minority communities were strongly in favor of these ordinances -- now, not all of them, of course, but many of them -- that that fact ought to bear in the analysis of a claim, where the claim was that these laws were intended to be discriminatory.

SEN. HATCH: Okay. Now, I apologize to my colleagues, but I would like to finish this line of questions, and they have been kind enough to allow me. Mr. Estrada -- thank you, Mr. Chairman.

SEN. LEAHY: And I have no objection, but just give me some ballpark time so I can --

SEN. HATCH: Be happy to do it. Yeah, I should be through in just a few minutes.

Now, Mr. Estrada, though your efforts to defend the constitutionality of these statutes were unsuccessful, you may have lost the battle but I think you won the war, as they say. I am referring to the Supreme Court's decision in Morales. Although the Court held that the Chicago ordinance was unconstitutionally vague, Justices O'Connor and Breyer wrote a concurring opinion that gave the municipalities a roadmap on how to enact constitutionally-sufficient anti-loitering laws. Is that correct?

MR. ESTRADA: That is right, senator.

SEN. HATCH: Under Mayor Daley's leadership. And I commend him for it. And I think everybody in those minority communities commend him for it. And I commend you for trying. Because, like I say, I think you won the war under Mayor Daley's leadership, and following the O'Connor/Breyer roadmap. Chicago enacted a new ordinance in the year 2000 -- is that right?

MR. ESTRADA: That's right.

SEN. HATCH: Now, has that ordinance been challenged in court along the same lines of the ordinance you defended?

MR. ESTRADA: I have been advised by the city lawyer for the city of Chicago that that is the case. And I have also been advised that a ruling has been issued by the court in that case upholding --

SEN. HATCH: Upholding the order. MR. ESTRADA: -- the constitutionality of the ordinance.

SEN. HATCH: Now, just one last little bit here, because this needs to be put to bed. I don't want you mistreated here in this committee. The problem of inner-city gang violence is so pervasive that we have here in Congress recognized that, and we addressed it in 1994. Mr. Estrada, are you familiar with 18 U.S.C. Section 521?

MR. ESTRADA: Yes, I know the statute, Senator.

SEN. HATCH: Can you tell us what that statute provides?

MR. ESTRADA: Sure. It deals with the problem of gang membership by defining what gangs are and what types of activities they engaged in, in a manner somewhat similar to what the city of Chicago had done. And it provides for enhanced prison sentences for the commission of crimes in association with gang activities.

SEN. HATCH: Mandated additional prison sentences, aren't they? And I would like to note that eight of my Democratic colleagues on this committee who were members of Congress in 1994 voted in favor of that statute. And I think that's important. By the way, Mayor Daley, was he a Republican or Democrat?

MR. ESTRADA: I have heard that he's a Democrat. I never met him.

SEN. HATCH: Well, I have heard that myself. Thanks, Mr. Chairman.

SEN. SCHUMER: Let the record stipulate that Mayor Daley is a Democrat. (Laughter.) Chairman Leahy.

SEN. LEAHY: Mr. Estrada, one of the things that I've done -- because I have been so impressed by it -- is for 20 years or more I heard Senator Thurmond ask basically the same question of judicial nominees, and I try to make sure it's always asked of them. That refers to what kind of a temperament they would have in a courtroom, the judge being really different than any other officer might be -- can be basically the king, or more than that it can be the dictator -- can do things the president can't get away with, somebody in elected office can't get away with. They have a life term, and they could make or break the career of lawyers or litigants, or anybody else, by -- sometimes just by their attitude toward them. They can humiliate a lawyer if they're having a bad day. They could favor one over the other. As Senator Thurmond has pointed out over and over and over again, how wrong that would be. And you would agree, I would assume, with Senator Thurmond and me on that point. Would you?

MR. ESTRADA: Yes, I would.

SEN. LEAHY: Now, earlier, I understand -- and I had stepped out prior to this -- Senator Kohl asked you about a meeting you had with the Puerto Rican Legal Defense Fund. Later they opposed your nomination. And then you've had meetings with the Congressional Hispanic Caucus, and following that they opposed your confirmation. They suggested in a press conference -- I paraphrase, but they said you were reluctant to answer their questions, that you were rude and dismissive. They had their chance to make their statement. How would you respond?

MR. ESTRADA: Senator --

SEN. LEAHY: I'm trying to make sure you get equal time here, so --

MR. ESTRADA: Yes, Senator. Thank you. I think that there is nothing more important or there are very few things that are more important to the job of a judge than having an appropriate temperament. And as a practicing lawyer, I have seen this first-hand.

I've been in the trial courts in the federal system. I have been in the appellate courts in the states and federal system. And I have been in the Supreme Court numerous times. And I can represent to you that I have the scars to show the lessons I have learned about temperament, like I am sure many lawyers do who practice in our courts. SEN. LEAHY: I've tried hundreds of cases. I know exactly what you mean.

MR. ESTRADA: And I have taken those lessons to heart and I understand the importance of having judges who will be attentive and courteous.

My meetings with both of the groups that you identified were, from my point of view, courteous and civil. Chairman Reyes from the Congressional Hispanic Caucus was a prince to me. He was -- he and most of his colleagues had a very pleasant exchange with me.

I did get a letter from them last night letting me know that after our meeting with them, they have decided not to endorse my candidacy. As you pointed out, my reluctance to answer questions about the case law, coupled with the (loitering?) cases that have been mentioned, are listed in their letter as the main issues.

It was -- I tried very hard not to say anything that could be construed as offensive in making clear that I could not answer questions that might come before the courts. And I believe I succeeded in doing that.

I do know that there was at least one member of the caucus at the meeting who was visibly upset that I wasn't willing to express views on how I might rule on cases that might come before me, and in particular with respect to the area of affirmative action. I did not think, in good faith, that I could respond to that type of specific questions, and given the (pendancy?) of my candidacy.

But I thought all of us on both sides conducted ourselves civilly and pleasantly. I was aware at the time that there was one or two members who were very unhappy with my inability to answer some of these very specific questions.

With respect to the Puerto Rican Legal Defense & Education Fund, I made myself available to them for an interview after they wrote to you calling me some unflattering things. And, once again, I tried and, I believe, succeeded in having, with all of them, a civil exchange that I thought was a pleasant one.

There was one exchange that has been adverted to earlier today, in the morning session, in which the chairperson of the Puerto Rican Legal Defense & Education Fund made some statements, which I already related to the committee and I would rather not repeat --

SEN. LEAHY: I don't mean to have you have to repeat yourself in that, and you did. The fact that people have written something critical about you -- this is probably going to come as an extraordinary surprise, but people have written critical things about even members of this committee -- (laughter) -- MR. ESTRADA: I find that very hard to believe, Senator.

SEN. LEAHY: -- on both sides of the aisle. But have you ever felt that any member of the Congress has ever discriminated against you?

MR. ESTRADA: Have I ever felt -- no.

SEN. LEAHY: And do you believe any member up here would do that?

MR. ESTRADA: I don't believe so, Senator. I don't know any of you as a person, but I am confident in the wisdom of your respective constituents. And I am the type of person that gives everybody the benefit of the doubt and the benefit of assuming that unless it is affirmatively demonstrated, they act in good faith.

SEN. LEAHY: Mr. Estrada, I read an article back a while ago regarding the low number of minority Supreme Court law clerks. Now, they're not under any law, any affirmative action law, in the Supreme Court. You had talked about the statistics which show little representation by minorities. I'm talking about a USA Today article by Tony Morrow (sp).

You said, quote, "If there is some reason for underrepresentation, it would be something to look into. But I don't have any reason to think it's anything other than a reflection in society." The article, I think (prior to this prompting ?) that there have been four Hispanic clerks hired by the sitting justices.

Without going into whether the Supreme Court should or not, on the more general legal issue, do you think there is a role for statistical evidence of discriminatory impact in establishing a pattern of practice of discrimination?

MR. ESTRADA: I am not a specialist in this area of the law, Senator Leahy, but I am aware that there is a line of cases, beginning with the Supreme Court's decision in Griggs, that suggests that in appropriate cases that may be appropriate. But I am not a specialist in that area of the law. I mean, I do understand that there is a major area of law that deals with how you prove and try disparate- impact cases.

SEN. LEAHY: Well, if you had a hiring or selection process about race or gender -- could that pass -- can you think of one that would pass the strict-scrutiny test that was articulated, for example, in the Adirand case?

MR. ESTRADA: I don't know that I should give out -- that it would be appropriate for me, Mr. Chairman, to give out a hypothetical of something that would meet the Adirand case. As you know, the Supreme Court in the Adirand case stated, as a general rule, that the consideration of race is subject to strict scrutiny. That means that though it may be used in some cases, it has to be justified by a compelling state interest. And with respect to the particular context, there must be a fairly fact-bound individual assessment of the fit between the interest that is being asserted and the category being used. That is just another way of saying that it is a very fact-intensive analysis in the context of a specific program and in the context of the justifications that are being offered in support of the program. And I don't know that I can try to hypothesize one.

SEN. LEAHY: Let me ask you this. Is diversity a factor that an employer or a school could take into consideration?

MR. ESTRADA: I am aware that there is a division in the courts of appeals with respect to the question. I do not recall whether the DC circuit has spoken to that question. I'm fairly certain they haven't.

SEN. LEAHY: I'm sorry, sir. Somebody was speaking. I didn't hear the -- you said you recall what?

MR. ESTRADA: I'm aware that there is a circuit split; the courts of appeals are in disagreement as to the correct legal answer to the question that you just posed. I am fairly certain that the court for which I am being considered has not passed on the issue, though I am not really sure. But because this is a matter that is being actively litigated in the courts and may come before the court if I am confirmed, I don't think it would be appropriate generally to answer that question, Senator.

SEN. LEAHY: Let me ask you a question -- and I may do some follow-up questions on that -- the Supreme Court, in 1996, in the Roemer v. Evans case, said, in effect, that in Colorado that a law that had the effect of discriminating against homosexuals and lesbians violated the equal-protection clause. Are you familiar with that case?

MR. ESTRADA: I read it when it came out. I was in the SG's office at the time. I haven't read it for four or five years, I don't think.

SEN. LEAHY: Do you recall whether you ever discussed it with anyone?

MR. ESTRADA: I do not recall.

SEN. LEAHY: Do you recall whether you ever, in writing or otherwise, expressed views about that case and the manner in which it was decided?

MR. ESTRADA: I do not recall, Senator.

SEN. LEAHY: What do you think about the case? MR. ESTRADA: I read it when it came out. I have a general impression of the general holding. As with other cases from the Supreme Court, as a practicing lawyer, I usually take them to try to get to the bottom line and see what the rule of law is. There was a time where I could parse through it right after I read it. I know of no reason, whether in law or in my own private personal views, why I would not be able to apply the ruling of the court to like cases which came before me.

SEN. LEAHY: Well, you would have to. I mean, any court of appeal would have to apply Roemer if they had a case -- (inaudible). They'd have to apply Roemer.

MR. ESTRADA: Absolutely.

SEN. LEAHY: We all agree with that. Would you -- and my time is up, so I ask you to submit this in writing -- would you give me your views on -- don't worry, we'll remind you of this; I don't mean to -- would you let me know what you think of the decision as it is in that case? I mean, what are your views in that case? Do you agree -- would you have decided the same way? And realizing this is not hypothetical, because, I mean, you're bound by it today.

MR. ESTRADA: Well, I understand that, Senator. And I think, to that question, I ought to answer by pointing out to what my view is of judging. And as I said, I think, earlier, I think it is imperative that, in judging, the person come to it with an appropriate process. And that entails withholding judgment, having an open mind, hearing from parties, and hearing from the briefs and doing all of the leg work to try to ascertain which of the two litigants, or if there are more, any of the litigants is right.

It would be impossible for me, with respect to this case, not having been the judge in it, to tell you whether I would rule this or the other way, because I think we have not engaged in the type of appropriate process that I think is essential to judging.

SEN. LEAHY: I'll give you a chance to give me your views on the decision. And, of course, you can always, in your response, say you don't want to. And I understand that. I'll let you make -- I'll let you decide how to answer.

MR. ESTRADA: Thank you, Senator. I think my answer, to the best of my ability, is I can't know, because I was not a judge in the case. And the question as framed is inherently an unknowable for somebody in my position, who has not sat through the case, listened to the arguments, conferred with the colleagues, and done all of the leg work of investigating every last clue that the briefs and the arguments offer up.

Not only that, but in the context of our federal system of courts, it is imperative for somebody who is a judge to respect what we call the case-of-controversy requirement, which is to say cases are not abstract questions of law. They involve real people. And the color of the case, so to speak, or the tenor of it, really does take on a very urgent character when you have to deal with the real person who has all of the real arguments in front of you and is not an intellectual exercise as to what might be a good rule of law. SEN. LEAHY: I'll take that as being your answer, and I'll save you the time of having to write another. Thank you. Thank you, Mr. Estrada. I appreciate you taking the time.

SEN. SCHUMER: Senator Brownback.

SEN. SAM BROWNBACK (R-KS): Thank you, Mr. Chairman. Mr. Estrada, welcome to the committee, and welcome to your wife and to your mother. I'm delighted to have you here. Being at the end of the bench, most things have been covered, and I don't have any piercing line of questioning to go into.

I really am a great admirer of yours. I had a chance to meet with you privately. I'm an admirer of your fortitude and your background and what you've gone through. I'm an admirer of your resume: magna cum laude out of Harvard, Columbia, graduated near the top of your class. I think all those are a very impressive product that you've produced through the life and a dedicated -- dedicated life that you've had to be able to help a number of other people out, and to see -- see what you can do for their betterment, for the betterment of this country.

I'm sorry that in this process now we seem to be more -- more caught up on a set of ideological tests than qualifications. And that seems to be what's coming forward more and more. I look through this pedigree and this background that you bring to the job, your unanimous "highly qualified" rating by ABA, your work for the Clinton Justice Department, your work for private law firms, your work for the Supreme Court, your work for a circuit court -- that's an impeccable background and shows a great breadth of service that you've had as well -- U.S. attorneys office, I believe the Southern District of New York as well as in that your personal background that you bring to the job as well, that would seem to me to be the very type of person that we would want on the circuit -- on the D.C. Circuit --

MR. ESTRADA: Thank you, Senator.

SEN. BROWNBACK: -- would be that -- would be all of that added together. The unanimous "well qualified" that you bring from the ABA, and they -- they review for judicial temperament. I've read this before to people, but in their own investigation that you had to go through, your legal writings are examined, prospective nominees, they conduct personal interviews in the ABA background, confidential interviews regarding integrity, professional competence, judicial temperament of a prospective nominee -- all that you've gone through, been through. I believe you've been waiting now for -- how long for a hearing?

MR. ESTRADA: I was nominated on May 9th, 2001, Senator.

SEN. BROWNBACK: We've been -- been going now for a year and a few months in the process. I add that all together and say "here is an incredibly well-qualified, broad-based individual." I believe you'd be the first Hispanic-American on the D.C. Circuit, from what I've seen, which is something I think that we should as well applaud with your background and having that as a broadening force on the D.C. Circuit, a breadth of background that that would bring to -- bring to the D.C. Circuit as well, which I think is a -- would be an important, laudable goal, to add that on top of the qualifiers -- I think one has to be qualified for the bench, qualified in judicial temperament and breadth and ability and expertise, and you've got to get through that threshold, but then once you're through that, you add more on top of it, of breadth and experience.

And I -- I think it's a very bad precedent we're moving towards here, when you look at that breadth of qualification, that type of nominee, that type of personal background and fortitude that you bring, and then to see that, well, there's people that are just going to opposed this strictly based on ideological purposes. I think we're poorer for it. I know people are going through a number of different questions on items you've written -- you've -- your opinions are known, but the blockage here is on a ideological purposes is why you haven't been brought up to date. And I think we're poorer for that.

I appreciate that you've been willing to put yourself through this process. I'm hopeful that we're going to still be able to get you confirmed. I think that would be the right thing for this country, and show a breadth of opinion on this -- this dias that we could put somebody of your caliber and qualifications and background on the D.C. Circuit. I don't know that that's going to take place, and I think we as a country will be poorer -- poorer for it.

So, my main point is to thank you for being willing to put yourself forward through this, and I'm -- you dedicate your life for the betterment of yourself and others. That's a remarkable story of accomplishments that you've already had, and I hope we're going to be able to add on top of that the circuit court position as well, and it's certainly well -- well-deserved on your part.

MR. ESTRADA: Thank you, Senator.

SEN. BROWNBACK: Mr. Chairman.

SEN. SCHUMER: Senator Kennedy.

SEN. KENNEDY: Well, it's been a long afternoon, long day for you, Mr. Estrada, but we thank you very much for staying with us. And I just have a few questions that I'd like to get your attention on.

As I mentioned, and the record is very clear, the point that we -- I was making earlier today about the NAACP, and your challenging their right to reflect to the local community, which had been the NAACP in the case of Annapolis was involved in counseling youth, as well as in various voter registration, and they felt that they had a right to be able to challenge the statute, and you believed that they should not. And I was making the point that the NAACP works in a very significant and important way in representing minorities -- others as well -- in that what we refer to as representational standing. And they have in issues of civil rights, discrimination, unemployment, and many other issues. And they were attempting to do it here, representing the community, because there was a division. No one is obviously justifying the gang and criminal activity. I think we can all dismiss that. We all dismiss that. The fact is the vote in Chicago among black aldermen was clearly against the statute. And I put that -- the names of those who voted on that -- in the record.

So I want to go, really go beyond that, rather than talking about the statute I was talking about the NAACP and the time that you took to oppose their position of standing in representing the community. And you opposed it, and it was later -- their position was upheld in the court.

But let me just move on to just one final area, and that is the issue that has been raised by a number of the organizations -- the Council of La Raza, DAFL, the Southwest Registration Education Project -- about the willingness of you to consider all sides and be fair- minded in the consideration of cases that would be before you in the District Court. I think we could use the word, sort of "temperament," if I could, in sort of characterizing it.

The importance of the court -- I mentioned earlier in the day its impact on the lives of people, which is enormously important. I think it's important also that anyone who is going to be on the court, no matter their personal views as a judge, that they have the ability, the inclination, to listen, to understand both sides of the argument.

Earlier this week under the Judiciary Committee hearing, chaired also by Senator Schumer, we had what I considered to be an excellent definition of how a judge should comfort themselves by a former judge, Ab Mikva. And he told us that the kind of judges that we want on the D.C. Circuit reflect moderation. He used the words, "We want judges who can hear with both ears, not decided the case before hearing the evidence; can remain reasonable even when their juices are flowing all around." And since some have raised the question about whether you possess those key qualities of both moderation now and openness and fairness, you have been called too much of an ideologue to serve as a judge. You said that you would have difficulty separating yourself from your personal ideological views. Some of your colleagues reportedly said that you do not listen to other people. According to one group with whom you met you were not even-tempered or open, and you even said that their criticisms of you might be illegally actionable.

Those views were represented in the letter which I have here, which I will include in the record. I am not going to spend the time on that. But I am interested in hearing from you how you would respond to those that have raised those issues about your temperament and how you would proceed.

MR. ESTRADA: Well, senator, let me start by giving you my best assurance that I am a person who listens with both ears, and who will be able, if I am fortunate enough to be confirmed, to take the lessons of private practice, which as I mentioned earlier to Senator Leahy, do involve going to courtrooms all over the country and getting a first-hand look at what the importance of judicial temperance. I am aware of some particular criticisms that you've read. I think I've spoken to a couple of them today. But I think I would like to emphasize that I have been in practice since -- I have been a lawyer since 1986, and I have been fortunate enough to have met and dealt with a broad range of people in my life, whether they are on the other side of the table, or co-counsel or judges and justices before whom I practice.

Just two days ago I got a copy of a letter that I understand has been sent to the committee some time back -- I just got it a couple of days ago. And the letter is from the head of the legal aid office in the Southern District of New York. As you may know, I was a federal prosecutor in that office. And the head of legal aid has written to the committee to point out how he and the members of his office, as my opponents in litigation, thought that I was a person of fairness and integrity, with whom they could deal fairly. And he has endorsed my nomination on the basis of his own experience, and that of his colleagues in the office when I was a prosecutor. And I think he has told you that I was tough but fair. Some of my former lawyers in the solicitor general's office, who identify themselves with both parties, have also written to the committee to emphasize their view that I am a person of integrity who will treat all litigants fairly. And so has one of my supervisors, a very important one, Seth Waxman, who was, as you may call, President Clinton's second solicitor general. He has also written to the committee, as have any number of other people who were political appointees of the Clinton administration under which I served for four years. I am extremely pleased that they and I understood at the time that our business was to be fair, and to get our jobs done, and that we have managed to forge lasting friendships from that time period.

The last item I would mention, senator, since I do think that this is about my extensive record in the law, is that there are all of those cases that I have handled. And as I think I mentioned earlier to you, when I see an injustice I try to get involved. And when I see a community need, I try to get involved. And that may not be in the taste of everybody. I am certain that there are people in the world who don't think all that well of me for having taken a death penalty case, just as I am certain that there are people in the world who don't think all that well of me for trying to help minority communities that passed these gang laws. But, to my mind, what should come clear, come through that record, is the level of care that I have taken over the years to make sure that I give back to the community and that I do so in a way that is fair, that advances the ball for our society. And it is my hope that when you look at the totality of the record, including those who have known me over the years, the judges before whom I have appeared, who were interviewed by the ABA, and all the rest of the record that you have in front of you, that you will conclude without hesitation that I am the type of person who listens with both ears, and will be fair to all litigants.

SEN. KENNEDY: Well, I thank you for your response. And if you have that letter -- because I don't believe the committee has the letter from the Southern District. I would like you to submit it, if you would, in this part. I think you were giving your answer about bringing the lessons from the private sector to this issue, I think those are enormously important. I mean, we have some enormously gifted, talented advocates, some extraordinarily able and gifted attorneys, but individuals that don't necessarily make great judges, particularly in the circuit, as we mentioned, that are dealing with some of the neediest causes and issues that affect the individuals that have really been left out and left behind. And this is an attitude that I think is enormously important and significant -- more so in terms of this position than I think in others. And I want to take the full opportunity to look at your record and what you have done and what does reflect it. I think all of us are impressed by your legal abilities. The real issue I think for myself is whether this translates itself into really being able to be fair and open- minded and considerate of the many individuals who don't have strong, effective, brilliant lawyers or special interests, and whose lives are going to be directly affected by the outcome of that circuit. And we have seen, as others have pointed out, where the interests of those individuals increasingly are being left out and left behind. I won't take time to review those statistics or conclusions, but that is a factor. So this is an important quality.

I want to thank the chair very much for --

SEN. SCHUMER: I thank you, Senator Kennedy. We have a vote going on -- I think seven minutes have gone into it. But, Senator Sessions assures me that he only has a few questions. We can probably get those in first. Then I have a few more -- Senator Hatch. Then we'll get on to the other nominees. But we'll do those after my final round of questions. Senator Hatch's will occur after the vote. But we'll go to Senator Sessions right now.

SEN. SESSIONS: Thank you, Mr. Chairman. I would just like to point out, with regard to endorsements, Mr. Estrada does have a number of endorsements from Hispanic groups, including the League of United Latin American Citizens, the largest and oldest Latino organization in the country, and the Hispanic Bar Association. So you certainly do have support in the Hispanic community.

And with regard to your principled and correct position on judging cases that you haven't heard and are not a judge in, I would like to quote again from Lloyd Cutler, who was a counsel to President Clinton, White House counsel, who has been a student of the judiciary, and served I believe on the Miller Commission, which dealt with how to confirm judges. He in 1985 wrote, "What the Senate ought not to do is determine through questioning a nominee's views on emerging issues of constitutional doctrine, or issues likely to face the courts in the future. Why? Because these questions are really a signal to a nominee that he will become a judge only if he promises to be a specialist -- to be a yes-man to the powers to be."

And then he went on to note that, "I think when we ask perspective judges their views on an issue likely to arise in the future, we are locking those judges into a position. The constitutional prohibition on advisory opinions tells us that justice is achieved by well-informed, concrete decisions rather than hypothetical speculation."

And, also, as you indicated, you hadn't heard the arguments and read the briefs. So you should not be making those kinds of comments in advance. And Senator Schumer has admirably said we ought to get away from gotcha politics and gotcha hearings here. And I do think, Senator Schumer, that today we slipped a bit with pressing him on an unnamed source statement that he has not had, and demanding answers that would be difficult I think for him to give. I noticed in that article it said -- it quoted you as saying "Estrada is like a stealth missile with a nose cone coming right out of the right-wing's deepest silo." Did you say that?

SEN. SCHUMER: I would say I can't recall.

SEN. SESSIONS: Okay, yes or no. (Laughter.) These hearings are -- we are open -- Senator Schumer is open. But we need to be open- minded. We need to be listening to you, not having our minds made up before we come.

And another thing that I noticed in these hearings that are troubling to me is the suggestion by Senator Kennedy that a lawyer's objecting to an entity's standing somehow reflects the hostile opinion of the group. Isn't it true, Mr. Estrada, just briefly, that a group to intervene and be a party to a lawsuit has to meet certain legal requirements of standing. And if you object to a person's or a group's standing, that does not mean you have any adverse opinion toward that group or person?

MR. ESTRADA: That is right, senator. I mean, I was -- I was -- thank you for giving me the opportunity to say this, and I am sorry Senator Kennedy has left. But obviously I have the highest respect for the history of the NAACP in this country breaking down racial barriers. That was not what was at issue in the case. It was simply whether in the particular case there would be appropriate litigants to be raising this challenge.

SEN. SESSIONS: The law is clear that every group and every person can't intervene in every case in America. And I think you were perfectly correct in representing your client there.

And with the Legal Aid Society letter, I would just note they wrote on September 16th -- that's from Mr. Joy (ph), the attorney in charge: "Miguel and I met while he was an assistant United States Attorney in the Southern District of New York. We had a number of cases together where he represented the government, and I the defendant -- including one case which went to trial, and a number of others that were resolved by guilty pleas. In addition to myself, the other lawyers in my office dealt with him on cases of their own. We were all tremendously impressed with his intellect and extraordinary memory. And he clearly was one of the smartest attorneys in the office which prides itself in attracting the best and the brightest. Yet throughout he was imminently practical in the judgments he made, and he had a down-to-earth approach to his cases. I found him to be fair and straightforward -- a prosecutor who did not treat defendants unduly harshly." And that is what the American Bar Association has found about you in talking to as many as 50 of your colleagues, judges, adversaries, when they rated you unanimously well qualified. Mr. Chairman, this is an extraordinarily qualified nominee. I believe he definitely needs confirmation.

SEN. SCHUMER: And on that temporary note we are going to recess for hopefully for no more than 10 minutes. (Sounds gavel.) The committee is in recess. (Recess.)

SEN. SCHUMER: Okay, I think we are ready to resume, once and for all. And I want to thank Mr. Estrada -- it's been a long day -- for being here. And I want to thank all the others. And we are going to get to you as quickly as we can.

Okay, let me go to another bunch of questions here for our nominee. Now, in asking questions about judicial philosophy, I am mindful of the importance, as you have stressed, I think correctly, of not seeking a precommitment from any nominee regarding how he or she will rule in any case that may come before him or her on the bench. That said, there is nothing absolutely wrong with your commenting on specific already-decided Supreme Court cases. I know of no one who feels that that is improper to do. I am sure you regularly do so in private. Nearly every lawyer worth his salt in the country engages in that kind of debate and discussion. I do. We do on this committee. I've done it with most of my colleagues here and there. And when a big case comes down, it's only natural for us to talk about it, in my office and in other places. And I am sure that's the case for you too, Mr. Estrada. You have friends who were former solicitor generals, law professors, partners in law firms. You clerked on the Supreme Court, we all know that you discuss Supreme Court opinions all the time. If you didn't, you probably wouldn't be qualified to serve on the D.C. Circuit. So it's not really enough to say you haven't read all the briefs and listened to oral arguments to give us your general views on cases. And I think you have something of an obligation to let the committee know.

So I want to ask you this, and my first one is a general one. Other than cases in which you were an advocate, please tell us what three cases from the last 40 years of Supreme Court jurisprudence you are most critical of. And just give me a couple of sentences as to why for each one.

MR. ESTRADA: Senator, I think there are cases that I have been critical of that I can think of. I can't -- I cannot say that I have made it my business to be in the business of being a critic of the Supreme Court, since my job generally entails getting the cases, figuring out what the rule of law is, and trying to make arguments for my clients on the basis of the rule as stated, rather than to going back and trying to second-guess it. I am not even sure that I could think of three that I would be -- that I would have a sort of adverse reaction to, if that's what you are getting at. But the reasons that I would even think of the cases in those terms would have to do with what the cases do for the administration of justice; whether they give enough guidance to lower courts, and whether they fulfill, you know, the court's job in ruling on the question at the time. So it would be more of -- this is not really useful to me as a practitioner, and probably won't be useful to the judges. I don't really think I am -- as a practicing lawyer, I think I would be reluctant to say that I will be critical of the outcome, because I have got to take it for what it is. SEN. SCHUMER: So you, with all of your legal background and your immersion in the legal world, you can't think of three, or even one single case that the Supreme Court has decided that you disagree with?

MR. ESTRADA: I don't know that I am in a position to say that I disagree with any case that the Supreme Court has ruled on, or that I think that the Court got it right, because I think, you know, as I explained earlier, I ought not to undertake to in effect call the Court to task for the purpose of having gotten something wrong, when I haven't been in their shoes, in the sense of having had access to all the materials, arguments, research and deliberation that they had. I mean, I can read a case, and it may seem to me when I read the case that this or the other one of the opinions is particularly well argued. And sometimes I have that sort of reaction -- fairly frequently. But I don't have the reaction of, Oh, I think this is wrong?

SEN. SCHUMER: You don't? Not to a single case in the last 40 years? I mean, I'll tell you one for me. I think Buckley v. Valeo was an awful decision.

MR. ESTRADA: Well, it certainly was wrong.

SEN. SCHUMER: I wish it had changed. Now, if I were to be nominated tomorrow by President Bush to sit on the court -- (laughter) -- I don't think saying that would disqualify me. Now, you are a lot closer to that than me, that nomination. But I mean I find it hard to believe that you can't opine -- Mr. Estrada, we are trying to find out how you think here. And --

MR. ESTRADA: I'm happy to deal with that question, senator. I can tell you how I approach cases.

SEN. SCHUMER: But I didn't ask that, because I am not asking how you approach cases. That is a legitimate question, and some have asked -- like it. I want to know how you feel about cases. And you have said more broadly than any other witness I've come across -- you have given us virtually no opinion on anything. That's because it might come up in the future. My reading of that ruling is different. If I were to ask you specific cases, that's fine. But asking you generally about views that might come before the Court, we have had witness after witness tell us their views on things like that. Just look at last week, Mr. McConnell's testimony. But now I am getting away from that, respecting, disagreeing very much with, and thinking the record is not very filled in here. But I am getting to older cases, cases that have already been argued. So you can't have that reason, and you can't tell us a one.

MR. ESTRADA: But the problem is the same, Senator Schumer, because in taking Case A and looking at whether the court's got it right, or whether I think they got it right, I have only the benefit of the opinions. I haven't seen the litigants. I haven't -- the case is ruled on, but I don't get to see what didn't make it onto the opinion.

SEN. SCHUMER: Sir, in all due respect, I have not read the brief of Buckley v. Valeo. I don't think that disqualifies me from having an opinion on the holdings of the case and its effect on America and its effect on law. I think it interpreted the First Amendment too broadly.

MR. ESTRADA: Senator --

SEN. SCHUMER: To say that the only time you can opine on a case is when you've read all the briefs, strikes -- well, it's an argument I have never heard before.

MR. ESTRADA: The only time that I will feel comfortable in opining whether the court got it right is if I had done everything the court had to do in order to actually issue a ruling.

SEN. SCHUMER: I didn't ask you if the court got it right. I asked you cases that you, from your viewpoint, would disagree with.

MR. ESTRADA: I mean, there are certainly cases --

SEN. SCHUMER: I am not asking you for the quality of the legal reasoning. I am asking you -- you have certain predispositions -- we all do -- no one is a tabula rosa (sic). Let me just read you a quote.

MR. ESTRADA: Rasa.

SEN. SCHUMER: Judge Scalia, a friend of yours, Justice Scalia: "Indeed, even if it were possible to select judges who didn't have preconceived views on legal issues, it would hardly be desirable to do so." You don't seem to have any.

MR. ESTRADA: Well, actually, senator, I have to say that I was trying to answer a different question when you said that. If you are asking whether I have views on issues of public concern, that may be implicated in the cases that make it to the court, of course I do. I have all sorts of views. I have all sorts of views --

SEN. SCHUMER: Well, tell me three cases you've disagreed with.

MR. ESTRADA: I don't think in light of the position for which I am being considered, Senator Schumer, that I ought to say that, because it would be a preconception, as Justice Scalia said in that opinion. And he went on to say that what's key about our system -- this is the state election cases, as I recall -- is that the first duty of the judge is to recognize that we all have them, and then put them aside. And out of deference for the job for which I am being considered and for which I hope to be fortunate enough to be confirmed, the one thing that I do not want to do is to share personal views which to me have no bearing on how I would do my job as a judge. SEN. SCHUMER: Let me just -- have -- are you saying though you have never shared your opinion on any case where you haven't read the briefs and heard the arguments, with others?

MR. ESTRADA: If you are asking whether I have opinions about the public policy case -- issues that are implicated in the case, or the quality of the job that the court did in writing the opinion, I have shared opinions like that, and --

SEN. SCHUMER: So, why don't you share them with us?

MR. ESTRADA: Because they do fall within the area of preconceptions that Justice Scalia identified, which I would be loathe to give out -- the impression would have anything to do with my job as a judge, if I were confirmed.

SEN. SCHUMER: Well, of course it will have things to do with your job as a judge. Everyone who has written on jurisprudence knows that. No one comes in as a tabula rosa (sic). We have another quote from Justice Rehnquist somewhere around here which says the same thing. Chief Justice Rehnquist: "Since most justice comes to this bench no earlier than their middle years" -- you're at the very beginning of your middle years -- "it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of sweeping clauses of the Constitution in their interaction with one another. It would be not merely unusual but extraordinary if they had not at least given opinions as to constitutional issues in their previous legal careers." And you are still refusing to give us any?

MR. ESTRADA: Yeah. I mean, I have read -- not recently, but I have read Justice Rehnquist's opinion. I think its his opinion in Chambers and Laird v. Tatum that you are reading.

SEN. SCHUMER: I don't know where it's from.

MR. ESTRADA: That was his opinion in Chambers and Laird v. Tatum, which I think Justice Scalia then quoted in the case that you cited earlier. But all to the point that we all recognize that we have private views on many issues. And our job, if we get to be judges, is to make sure that people understand that they come before us that we will give ears to the contrary argument.

SEN. SCHUMER: You just said an hour ago that when you were giving recommendations to Justice Kennedy about law clerks, you did look at their views. You must have asked them questions or heard something about it. And now yet you are saying -- and that's for a law clerk. And now you are saying for a judge, a life-time appointment, you won't share those views with the committee.

MR. ESTRADA: Senator --

SEN. SCHUMER: It seems to me a bit contradictory.

MR. ESTRADA: The question that I asked in doing my job for Justice Kennedy are intended to ascertain whether there are any strongly felt views that would keep that person from being a good law clerk to the justice. If the person tells me that they think that we ought not have the death penalty, but that he or she is more than happy to work on a case for the justice in which the outcome is that one of them will be upheld, I have no further job to do. I would never tell the justice that that person, he or she, is an unsuitable law clerk. I ask about these things solely for the purpose of gaining the person's assurance that he is a person who follows law; that is the assurance that I am here to give you today, whatever my personal views on any issue may be. I will put them aside to the best of my ability and follow what the Supreme Court tells me is the governing legal framework.

SEN. SCHUMER: You have said that to us, and we are not sure that will happen. And unless you allow us to probe a little further as to how you think and what you do, we can't come -- we can't judge whether that will actually happen or not. We don't know you. And the purpose of this hearing is to get to know you a little better. And, in all due respect, you are not letting us do that hardly at all. I mean, you know, we have had a lot of reading of your wonderful history, which I commend you for. But that's not the only reason, at least in the opinion of many, if not most, to vote yes on somebody who was nominated for at least what I consider the second most important court in the land.

MR. ESTRADA: I am happy to try to answer any question that I think I can appropriately answer, Senator Schumer, consistent with the nature of the job that I would undertake were I to be confirmed.

SEN. SCHUMER: Let me just ask you one more question. There was only one issue that you did address, Roe v. Wade. Why were you willing to talk about that case when Senator, I believe it was Feinstein, asked, but no other?

MR. ESTRADA: I thought my answer to the question was that I would follow the case, and that I take the holding of the case as stating what it holds, which is that there is a right, as the --

SEN. SCHUMER: Nope. I thought you used the word "morally" -- I don't remember -- we could look at the record. But I didn't think you just said it was the holding of the case. You said it's settled law. And then you talked about some other normative words. I don't remember. We could get the record and look.

MR. ESTRADA: And what I -- what I was pretty sure I had said, senator, which is what I was about to repeat now, which is to say it is the holding of the case, I have no personal, moral, philosophical view, or view of any other type, that would keep me from following the holding of the case. I did not think I in any way implied what my view might be.

SEN. SCHUMER: Okay. I think that's basically it for me. I'm going to say something in conclusion, but I will first let Senator Hatch do what he has to do.

SEN. HATCH: Thank you, Mr. Chairman. I earlier quoted from the code of ethics, and it's worth repeating. Canon 5 of the Code of Judicial Conduct of the American Bar Association expressly forbids -- expressly forbids nominees to judicial duty from making, quote, "pledges or promises of conduct in office or statements that commit or commit the nominee with respect to cases, controversies or issues that are likely to come before the courts." Now, that's an important -- I think you've answered these questions just right.

Now, your career has been marked by a commitment to equal justice for all people and everybody under the law. I think we have gotten to know you pretty well here today. Both in government service and in private practice you have sought to ensure that all citizens receive the law's fullest protections and benefits, whether they are death row inmates, abortion clinics targeted by violent protestors, or inner- city residents victimized by gang violence.

I would like to ask you specifically about your representation of Tommy David Strickland -- Strickler -- in his death row appeal before the Supreme Court. Can you tell us about that case and about how you got involved?

MR. ESTRADA: Yes, senator. I was sitting at my office at Gibson, Dunn one afternoon and the phone rang, and there was -- there were actually two or there people on the line in different parts of the country. One of them was an attorney from Richmond who had been handling the case until then. Her name is Barbara Hartung. Another one was an attorney who identified himself from being from the NAACP Legal Defense Fund in New York. I think his name was David Kendall. And there was another lawyer who had been helping Ms. Hartung -- I think in Florida. I think his last name was Olive. And they told me that they had tried to get help in the representation in this case from a law professor at Georgetown law school, who had then just had a young child, and she was not in a position of doing the case. I knew this faculty member from Georgetown, because she and I had been U.S. Attorneys together, and she recommended me to Ms. Hartung as somebody who might be interested in this case, having worked with me at the Southern District of New York.

They called and I got told about the case, and asked them to send me the papers, or some of the papers so I could see what the issues were. They did that I think by overnight mail, and I looked through it. And, frankly, as a practicing lawyer, I was frankly horrified about what had happened in that case. And I told them that I would do the case -- that I would do the case for free. I wrote the briefs in the Supreme Court, the opening brief and the reply brief, with the help of Ms. Hartung, and got to know all through the record -- argue the case in the Supreme Court I believe in 1999, and unfortunately lost. It was one of those cases in which I as a litigant on that side had to win a large number of points to get to the end, and I won all but one. I mean, I had -- many of the things I had seen that were wrong with the case the Court did agree were wrong with the case. But, unfortunately, there was one final step that they said, Well, that one you don't get. And the result was that we lost the entire case. But there was a lot of merit in the case, I think as the judgment of the Court did recognize, because they ruled for my side in the case in all but one of the issues.

SEN. HATCH: You represented him for free. Do you remember approximately how many hours you spent on that?

MR. ESTRADA: Yes. I think I estimated between four and five hundred hours on that case.

SEN. HATCH: Let me just read a portion of the letter the committee received from your co-counsel in the case, Barbara Hartung. Ms. Hartung says that you, quote, "Value highly the just and proper application of the law." Now, in this particular case this man had abducted a young girl and murdered her.

MR. ESTRADA: That was what the state claimed they had proved at trial.

SEN. HATCH: Yeah. Said that you quote, "Value highly the just and proper application of the law. Miguel's respect for the Constitution and the law may explain why he took on Mr. Strickler's case, which the bottom concerned the fundamental fairness of the capital trial and death penalty. I should note that Miguel and I have widely divergent political views, and disagree strongly on important issues. However, I am confident that Miguel Estrada will be a distinguished, fair and honest member of the federal appellate bench." I would like to submit the whole letter to the record, if I can, Mr. Chairman. Is that okay? Submit the whole letter to the record?

SEN. SCHUMER: Without objective.

SEN. HATCH: Okay, now, let me just say that earlier Senator Kennedy asked about your fairness, your ability to consider all sides of an issue before making a determination. And I think some of the best testimony on your fairness comes from Ron Klain, who served this committee well on the majority side, on the Democratic side. He served as chief of staff to former Vice President Al Gore. Mr. Klain wrote in a letter to the committee, quote, "Miguel will rule justly toward all, without showing favor to any group or individual. The challenges he has overcome in his life have made him genuinely compassionate, genuinely concerned for others, genuinely devoted to helping those in need. Those without means or without advantage will get a fair hearing from Miguel Estrada," unquote. As Mr. Klain explained in his letter, he has known Mr. Estrada since you were both in law school. Now, in my opinion it speaks volumes that those who know you the best are the ones who would vouch on the record for their words and actions on your fairness.

Now, I think that -- now, Senator Schumer is getting the point of my next line of questions, and that is this: I believe that your answers amply illustrate that even assuming that you are pro life -- and I have no idea or care whether you are -- you apply the laws articulated by the Supreme Court regardless of your personal views.

I would like to ask about a case you argued in the Supreme Court on behalf of the Clinton administration, and that was NOW v. Scheidler. Can you just tell us about the background of that case?

MR. ESTRADA: Yes, senator. The -- that was a case that came out of litigation between Operation Rescue and some abortion clinics. I think it was in the Midwest. And Operation Rescue -- I mean, I am sorry, the clinic sued Operation Rescue, using a federal statute, called the Racketeer Influence and Corrupt Organizations law. They lost in the 7th Circuit when the 7th Circuit found that Operation Rescue, since it was not motivating by -- motivated by a desire to earn money, but was doing this for philosophical reasons, could not be reached under this law, which is really intended to go after people who engage in violent conduct. I worked on the case when I was in the solicitor general's office. I wrote a brief arguing that this was a misreading of the statute, because there was nothing, as I argued in the brief, that indicated that the economic purpose requirement wasn't a statute. I also argued the case. Solicitor general Drew Days --

SEN. HATCH: So you wrote the brief and you argued the case in the Supreme Court on behalf of NOW?

MR. ESTRADA: That's correct.

SEN. HATCH: And against the pro-life protestors who were accused of violence?

MR. ESTRADA: That is right. That is right, senator.

SEN. HATCH: How did the Supreme Court rule?

MR. ESTRADA: The Supreme Court ruled unanimously for the position that I advocated.

SEN. HATCH: And they basically ruled that the RICO statute could be used to punish pro-life activists who protest in a violent fashion outside of abortion clinics?

MR. ESTRADA: Yes, with respect to the issue. Then in front of the court. I think the case has now been tried and is now back in front of the Supreme Court on a different issue. But --

SEN. HATCH: Okay, but the Court held that RICO does not require pecuniary purpose by the defendant to maintain a cause of action, right?

MR. ESTRADA: That was the issue in the case, yes.

SEN. HATCH: Well, I'd like to point out that NOW has held the Supreme Court decision in Scheidler as a, quote, "Our landmark lawsuit in which a unanimous jury declared the defendant guilty of racketeering. And NOW won the first-ever nationwide injunction against anti-abortion extremists," unquote. I would also like to point out that on the NOW website there is an article by Vera Haller of Women's Enews that applauds your choice as a judicial nominee. The article notes that you supported anti-racketeering laws against abortion foes in the Schiedler case, and observes that, quote, "His arguments were not ideological," unquote.

The article further notes that, quote, "His presence on the list of judicial nominees was seen by some as a sign that President Bush hoped to avoid contentious confirmation battles in the Senate." SEN. SCHUMER: Spoken by a left-wing interest group. Something you don't like.

SEN. HATCH: No, I like the people who stand up for women's rights.

Let me just say this -- and Miguel you have -- (laughter) -- after all, I have three daughters and three sons, and I have I think 12 or 13 granddaughters.

Now, let me just say this. On August 3rd of 1995 we held a hearing for President Clinton's nominee William Sessions. Mr. Sessions had served as Senator Leahy's campaign manager. So there was no doubt that many on the Republican side of this table disagreed with his political ideology. We asked Mr. Sessions, "Are you committed to following Supreme Court precedent on the rulings for the federal Court of Appeals for your district faithfully, and giving them full force and effect, even if you personally disagree with such precedent or ruling?," unquote. He answered, "Yes, Mr. Chairman, I am." Despite his record of partisan political activity, that answer was good enough under the old standard, where the Senate bore the burden of finding out or finding a strong reason to reject a nominee. And the Republican Senate confirmed him by unanimous vote.

On June 16th, 1999, I held a hearing for President Clinton's nominee Karen Schreier. Ms. Schreier served as chairman of the South Dakota Democratic Party. So there was no doubt that we on the Republican side disagreed with her political ideology. And I asked her at that time -- I said, "Are you committed to following the precedents of the higher courts faithfully, and giving them full force and effect, even if you personally disagree with such precedents?" She answered, "Yes, Mr. Chairman, I definitely am." Now, despite Ms. Schreier's record of partisan political activity, that answer was good enough under the old standard, where the Senate bore the burden of finding a strong reason to reject any nominee. The Republican Senate confirmed her by an overwhelming vote of 94 to 4.

On May 10th, 2000, we held a hearing for President Clinton's nominee James Brady. Mr. Brady had served as a vice chair to the Democratic National Committee. Thus again there was no doubt that we on the Republican side disagreed with his political ideology. Mr. Brady was asked this question: "If a U.S. district judge or a U.S. Court of Appeals judge concludes that a Supreme Court precedent is flatly contrary to the Constitution, are there any circumstances under which the judge may refuse to apply that precedent to the case before him?," unquote. Mr. Brady answered, "No, there are no circumstances under which a United States district judge or a United States Court of Appeals judge may refuse to apply that precedent to the case before him." Now, despite Mr. Brady's record of partisan political activity, that answer was good enough under the standard we've used up until recently. The old standard, where the Senate bore the burden of finding a strong reason to reject a nominee -- and not just some frivolous reason that they call strong. The Republican Senate confirmed Mr. Brady by an overwhelming vote of 83 to 16. These same questions were asked of President Clinton's district and circuit nominees alike. I never shifted the burden back to these nominees.

My understanding is that Mr. Estrada has never -- never -- headed a political campaign in his life, either at the national or the state level. Instead he's been a lawyer, and a distinguished one at that. Imposing a double standard on Mr. Estrada has no basis in the original history of the Constitution, and it is not what the Republican Senate did to President Clinton's nominees, even though -- who did have a record of partisan political activity. I could go on and on. Now, to impose a double standard on Mr. Estrada I think would be shameful on the part of this committee, and on the part of the Senate as a whole. Mr. Estrada should be treated no differently than the way partisan Democrat nominees, who said they would observe and follow faithfully the rule of law, were treated as they were brought before the committee by me as chairman anyway when we were in control -- and I might add when Senator Biden was in control. These type of things you just claimed did not -- we did not use the standard that some are suggesting we use now that Mr. Estrada is the nominee to the Second Court of Appeals for the District of Columbia.

Now, Mr. Chairman, I think this has been a good hearing. I see a very excellent man before us. I see a man who is totally qualified for the second Court of Appeals for the District of Columbia. I see a man who is devoted to the law, who is devoted to doing what's right, who will listen with both ears, who will be fair to all litigants, and who is smart enough to understand what the law is, and who I believe is a man of great conviction, a man of great capacity, and a man of great ethical and moral standing, and there is no question in anybody's mind a great lawyer.

So I hope that this committee will not delay his nomination any further now that we are in the 16th month since you were nominated by the president. I hope we can get this nominee in front of the committee, out of the committee and voted upon on the floor before we finally recess. And I hope, Mr. Chairman, you will be of assistance in getting that done. Thank you.

SEN. SCHUMER: Thank you, Mr. Hatch. And thank you for your patience all day long. I'm just going to be brief in my final statement. Then we'll get to the next witness.

First -- and I don't like playing the game tit-for-tat, but Mr. Estrada is being treated much better than the last two nominees for the D.C. District Court of Appeals, Mr. Snyder (sp) and Ms. Kagan who waited 15 and 18 months respectively, and never got a hearing. This vacancy might well -- well, we have 12 -- so we still might have this vacancy, but if you want to talk about double standard, let's look at that one. Now, let me give you my view of the hearings. Mr. Estrada, you have shown that you have -- you're an excellent lawyer, and you have shown you have a great deal of patience, which I think is very important. But I have to tell you this: I think many of us emerge from this hearing, we think we have more questions than answers. This hearing has raised more questions than you have answered.

You will not answer anything about your views of prospective cases, going far beyond what the canons of ethics say. They talk about specific cases -- not about general views on constitutional issues. And, amazingly enough, you will not answer your views of previous cases. So the irony is the only cases you will talk about are the ones you have already litigated, because the only ones you will talk about are the ones where you have seen the brief. Well, we don't need those. We have those. That is part of the spare record that we have.

And so, as I said, I think most of us emerge from this hearing with more questions at the end of the day than we had at the beginning of the day. I think that makes it more important than ever that we be able to see your record when you were in the solicitor general's office, because otherwise the record is so sparse, and your unwillingness to answer anything about your views of how you would be a judge, give us very, very little to go on other than your assurance, which we received from witness after witness, that you will simply follow the law. To me that's not enough. And I hope that we can come to an accommodation with the administration and get the records. I don't know what's in those solicitor general records. They may vindicate you. They may not. They may be somewhere in between. But we really need a record -- much more of a record than you've given us today when we are nominating somebody to the second highest court in the land.

I thank you for your patience. I thank your family for being here. And you are -- you are free to go.

MR. ESTRADA: Thank you, Senator.

END.