# How can Estrada answer Democrats' questions if they don't ask? **URL:** \ **Category:** Great Debates\ **Created:** [March 4, 2003, 3:44pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008 "2003-03-04T15:44:11Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [March 5, 2003, 10:24pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/61 "2003-03-05T22:24:40Z")
> [@](#): > > Polycarp, the question of whether or not David Souter is a liberal activist judge is a hijack. If you want to debate it farther, perhaps it deserves its own thread. It isn’t a hijack, actually. I asked you before whether Bush would be happy if Estrada turned out like the last stealth nominee. You replied that Souter was an activist liberal, which was non-responsive but presumably meant that Bush _wouldn’t_ be happy since an activist liberal is a bad thing to be. Aside from pointing up your determined blinderedness to things like the actual judicial philosophies of actual Supreme Court Justices–_cough_Scaliadoesn’tpracticejudicialrestraint_cough_–it dodges my fundamental point: that your “aw shucks” skepticism about Democrats’ motives and Estrada’s conservatism completely ignores Bush’s potential motives for making Estrada a nominee in the first place. Souter is, at best, moderate to liberal. He isn’t an activist. If you agree that Bush doesn’t want Estrada to turn out moderate to liberal, than you agree that Estrada’s politics (and, as Bush himself has stated, his judicial philosophy) were considered in making the nomination. And if you agree to that–and unless you believe that the Senate should give the executive carte blanche to make choices on the basis of ideology, which is a creditable argument, albeit not one I’ve heard you make–then you agree that the Senate can consider ideology (even–or especially!–inferences thereof) in deciding whether to confirm the nominee. Got it? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 5, 2003, 10:33pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/62 "2003-03-05T22:33:19Z")
> [@](#): > > MR. ESTRADA: I have – my view of the judicial function, Senator Feinstein, does not allow me to answer that question. I have a personal view on the subject of – of abortion, as I think you know. And – but **I have not done what I think the judicial function would require me to do in order to ascertain whether the court got it right as an original matter.** I haven’t listened to parties. I haven’t come to an actual case of controversy with an open mind. I haven’t gone back and run down everything that they have cited. And the reason I haven’t done any of those things is that I view our system of law as one in which both me as an advocate, and possibly if I am confirmed as a judge, have a job of building on the wall that is already there and not to call it into question. **I have had no particular reason to go back and look at whether it was right or wrong as a matter of law** , as I would if I were a judge that was hearing the case for the first time. It is there. It is the law as it has subsequently refined by the Casey case, and I will follow it. Perhaps he slept through that week in Constitutional Law. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 5, 2003, 10:36pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/63 "2003-03-05T22:36:22Z")
> [@](#): > > \*Originally posted by Gadarene \* > I’m _really_ annoyed that I just spent a fair amount of time composing a reply, had the hamsters eat it, and then discovered that my ctrl-C-ing of the almost-finished post had been supplanted by a quick copy-and-paste of a link to a conservative website. Damn conservatives. Do you assert that the hamsters are conservative? 😉 > [@](#): > > It doesn’t matter whether Souter’s liberal or moderate (though it _does_ matter that he ain’t activist one whit); his elevation proved ultimately and undeniably to be a great disappointment to conservatives. I agree with both statements. > [@](#): > > Do you, **december** , think Bush and conservatives generally will be happy if Estrada turns out to be a Justice like Souter? Not at all. > [@](#): > > What about like Kennedy? I can only speak for myself. Kennedy is more-or-less OK, but he just doesn’t seem to be in the same league intellectually as Souter and Scalia. > [@](#): > > Given that a) Souter was appointed in large part to _be_ a stealth nominee, his track record affording senators little purchase from which to object to his nomination; b) Estrada has even less of a paper trail indicating his ideology and judicial philosophy than did Souter; c) Bush II isn’t dumb; and d) conservatives don’t want another Souter, I think it’s incredibly disingenuous to posit that Estrada’s no more conservative than the average Republican–else, given all that, why was he nominated in the first place? You’re treating Estrada like a Supreme Court nominee. As an appellate court nominee, he’s an obvious choice. > [@](#): > > Far more likely that Bush II, through Ted Olson and others, is extremely assured that Estrada will be the kind of judge they’re looking for, and is counting on the information asymmetry in this case to effect the same result (though not the same Supreme Court justice) that _lack_ of information did with Souter. Maybe so, but you’re getting ahead of yourself. Bush nominated Estrada two years ago. If he had been confirmed, we’d have a fair amount of information about him by now. > [@](#): > > I agree that it’s about time we had a Hispanic Supreme Court Justice–it’s just that I didn’t realize that Miguel Estrada was the only qualified Hispanic lawyer in this country! :eek: Do you happen to know, **december** , what makes White House counsel Alberto Gonzales (who is, I do believe, himself Hispanic) a problematic judicial nomination for many conservative groups? Give you a hint: it begins with an ‘n,’ ends with an ‘h,’ and has [‘ot nearly pro-life enoug’](http://www.rnclife.org/reports/2002/Oct02/oct02.shtml) in the middle. Yes, this is true. OTOH it’s not clear whether Bush might not appoint Gonzales in preference to Estrada. Bush obviously thinks highly of Gonzales. Of course, Gonzales was on the Texas Supreme Court, so experience isn’t a problem. > [@](#): > > Please, please, _please_ answer the rest of my previous post. There’s a lot there that hasn’t yet been discussed, and I’m sincerely interested in your response. OK, I’ll try. Please re-ask any questions I overlook. > [@](#): > > I’m also curious, december, how you feel about Miguel Estrada’s judicial fast track. How much time do you think it’s appropriate for Estrada to spend on the appellate level before he’s ready to move on to the Supreme Court? I have mixed feelings. It’s far from obvious that Estrada’s work as an appellate judge will answer the questions. His work for Clinton shows that he has a good ability to do his job, setting aside his personal political views. In other words, I don’t expect Estrada to make waves as an appellate judge. (Hell, _Bork_ didn’t even make waves as an appellate judge!) > [@](#): > > Souter sailed through so quickly he had no opportunity to show Bush I that he wouldn’t be the kind of justice that administration wanted–but he was moved through that quickly so that, assuming he was that kind of justice, the Senate wouldn’t be able to catch him out. IIRC Bush relied on Warren Rudman, the Senator from Souter’s state of New Hampshire. > [@](#): > > Since Estrada has no body of law review articles, speeches, or opinions from which to evaluate what kind of justice he’d be, how long should we keep him on the D.C. Circuit (if he gets appointed) before elevating him to a permanent position on the highest court in the land? I would feel better if he had at least 2 or 3 years. However, as I said, I don’t expect to learn much about how he would rule on the SC. > [@](#): > > Oh, also: I’m still looking, per preview, for some acknowledgment from **december** that “liberal” != “activist liberal.” What do you see as the difference? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 5, 2003, 10:40pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/64 "2003-03-05T22:40:16Z")
> [@](#): > > \*Originally posted by december \* > Of course, Gonzales was on the Texas Supreme Court, so experience isn’t a problem. Nonsense. But I will deal with this assertion at a more appropriate time (i.e., later this year). ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 5, 2003, 10:43pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/65 "2003-03-05T22:43:17Z")
> [@](#): > > I can only speak for myself. Kennedy is more-or-less OK, but he just doesn’t seem to be in the same league intellectually as Souter and Scalia. Yeah, I’d have to agree. I’ve read some of Kennedy’s work, and he **does** seem to be head and shoulders over Scalia, attempting to apply the Constitutional law of the country instead of his own personal views. Glad to see you can see the difference! 😉 > [@](#): > > > [@](#): > > > > Oh, also: I’m still looking, per preview, for some acknowledgment from december that “liberal” != “activist liberal.” > > What do you see as the difference? Subtle hint: Do a search for posts from me in your two Estrada threads containing the name Frankfurter. Read the contents. Write a one-paragraph description of what you find in them. I can put together a clear thought and express it in fluent English. Or perhaps **minty** will be kindly enough to attempt once again to explain the concept of “judicial philosophy” to you. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 5, 2003, 10:53pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/66 "2003-03-05T22:53:19Z")
> [@](#): > > \*Originally posted by Polycarp \* > How about this one, then? Would **Estrada** be an activist conservative judge if he were confirmed? How do you reach that conclusion? What is an activist conservative? IMHO an _“activist liberal”_ is a judge who legislates _liberal_ policies from the bench. An _“activist conservative”_ is a judge who legislates _conservative_ policies from the bench.E.g.[ul][_]An activist liberal judge overrides state law to rule that abortion is legal. An activist conservative judge overrides state law to rule that abortion is illegal.[_]An activist liberal judge gives various benefits to illegal immigrants, regardless of state law. The activist conservative judge prohibits giving benefits to illegal immigrants, regardless of state law.[_]The activist liberal reduces punishments for criminals. The activist conservative increases punishments for criminals.[_]The activist liberal re-writes tort law to create new causes of action. The activist conservative re-writes tort law to eliminate traditional causes of action.[/ul]Hopefully, my point is clear. There have been no activist conservative judges on the SC in my lifetime (although Robert Bork might have been one.) YMMV ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 5, 2003, 11:14pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/67 "2003-03-05T23:14:32Z")
And what do you call a judge who overrides _federal_ law to rule that abortion is illegal? ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [March 5, 2003, 11:15pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/68 "2003-03-05T23:15:39Z")
> [@](#): > > There have been no activist conservative judges on the SC in my lifetime. Hi, we’re Antonin Scalia and William Rehnquist. Pleased to meet you. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [March 5, 2003, 11:48pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/69 "2003-03-05T23:48:07Z")
[quoteAnd what do you call a judge who overrides federal law to rule that abortion is illegal?[/quote] Cite? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 5, 2003, 11:52pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/70 "2003-03-05T23:52:58Z")
Rhenquist, White, Scalia, and Thomas in _Planned Parenthood v. Casey_. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [March 5, 2003, 11:52pm UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/71 "2003-03-05T23:52:58Z")
First and foremost: Why. Did. Bush. Nominate. Estrada? To amplify: 1. Do you stand by your earlier assertion that there’s no evidence of Estrada being particularly conservative? 2. If so, what criteria did Bush use to separate Estrada from all the other not-that-conservative Hispanic lawyers out there? 3. Particularly, if you agree that Gonzales isn’t conservative enough for many on the right, does that lead you to any inferences about Estrada’s politics? 4. And how, in your view, has the Bush administration modified their nomination criteria in order to avoid another Souter? Feel free to speculate. 5. Following from that, what assurances do you believe Bush has that Estrada will be the type of Justice he wants? More questions you haven’t answered, or points you haven’t responded to: [ul] [li]Please address my response to the distinction you made between “interpreting the law” and “legislating from the bench.” Specifically, if by the former you don’t mean Frankfurter-esque extreme judicial deference, what _is_ the difference between the two. Supplementing this with case citations would be wonderfully helpful.[/li][li]Have you abandoned your characterization of Souter as an activist?[/li][/ul] Guess there weren’t as many as I thought. Mostly variations upon a theme-- Why did Bush nominate Estrada? And if ideology played a part, why is it not valid for the Senate to use ideology as a basis not to confirm? In fact, a response to my post of 5:24 pm would be helpful in this regard. And here’s a new question: Do you believe [Lopez](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10287) and [Morrison](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-5)to be examples of judicial activism? Why or why not? To your points: > [@](#): > > I can only speak for myself. Kennedy is more-or-less OK, but he just doesn’t seem to be in the same league intellectually as Souter and Scalia. So the problem with Kennedy is that he’s not smart enough? Upon what do you base this conclusion? He graduated Stanford in three years. He spent a year at the London School of Economics. He graduated cum laude from Harvard Law. He drafted then-Governor Reagan’s sweeping tax initiative. He served over a decade on the appellate circuit. What leads you to the belief that he’s not in the same intellectual league as other Justices? I’m genuinely curious to hear your answer–and I presume, since they must be the source of your view, that you’ll be citing cases to support it. > [@](#): > > You’re treating Estrada like a Supreme Court nominee. As an appellate court nominee, he’s an obvious choice. But you recognize that, for our purposes, there’s no difference here. If Estrada is appointed to the D.C. Circuit, we both agree that he’ll have very little time in which to demonstrate his personal jurisprudence before being nominated for the High Court. And if the Senate confirms him for the appellate court now, when he’s nominated to the Supreme Court in six months they’ll be hit with, “Well, you thought he was good enough for the D.C. Circuit! Nothing’s changed between now and then that makes him any worse a judicial candidate!” > [@](#): > > OTOH it’s not clear whether Bush might not appoint Gonzales in preference to Estrada. Do you believe that conservative lobbying groups will support the nomination of a not-staunchly-pro-life Justice? Honestly? > [@](#): > > In other words, I don’t expect Estrada to make waves as an appellate judge. (Hell, Bork didn’t even make waves as an appellate judge!) Um…sure he did, unless you have a really specific idea of what “making waves” means. Bork wrote a good number of significant opinions on the D.C. Circuit–123 of them, in fact. > [@](#): > > I would feel better if he had at least 2 or 3 years. However, as I said, I don’t expect to learn much about how he would rule on the SC. So on what basis should senators judge whether he’d make a good Supreme Court Justice? > [@](#): > > What do you see as the difference [between liberal and activist liberal]? The difference between William Brennan and Stephen Breyer. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 6, 2003, 12:03am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/72 "2003-03-06T00:03:40Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Rhenquist, White, Scalia, and Thomas in _Planned Parenthood v. Casey_. \*\* I need some help here. I thought that case concerned [Pennsylvania’s abortion law](http://supct.law.cornell.edu/supct/html/91-744.ZS.html). > [@](#): > > At issue are five provisions of the Pennsylvania Abortion Control Act of 1982: § 3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed; § 3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; § 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; § 3203, which defines a “medical emergency” that will excuse compliance with the foregoing requirements; and §§ 3207(b), 3214(a), and 3214(f), which impose certain reporting requirements on facilities providing abortion services. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 6, 2003, 12:52am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/73 "2003-03-06T00:52:26Z")
> [@](#): > > \*Originally posted by Gadarene \* > First and foremost: > > Why. Did. Bush. Nominate. Estrada? Because. He’s. An. Obvious. Appellate. Court. Nominee. He’s got everything. Smart. Honest. A Harvard Law Review editor. Hispanic immigrant. Overcame a speech defect. Had 15 Supreme Court cases. Partner in a top law firm. Great recommendations, even from Democrats. Worked in both Republican and Democratic administrations. And, most of all, _he wants the job._ I don’t know why someone who can earn in 7 figures wants a job paying a tiny fraction of that, but as a citizen I’m grateful to have such a capable public servant. > [@](#): > > 1. Do you stand by your earlier assertion that there’s no evidence of Estrada being particularly conservative? Pretty much, yes. You can argue that Bush would only have appointed a conservative. That’s circular reasoning, and it’s based on an unproven assumption. You can observe that he’s a member of the Federalist Society. AFAIK those are the only indications. Offsetting them is his work in the Clinton Justice Dept. > [@](#): > > 1. If so, what criteria did Bush use to separate Estrada from all the other not-that-conservative Hispanic lawyers out there? Your guess is as good as mine. My guess is that Estrada is super-qualified. It has been my impression long before this that one of Bush’s strengths as President is taking the trouble to find very capable appointees. Bill Clinton is certainly smarter than Bush, but Bush’s appointees are more uniformly strong than Clinton’s. > [@](#): > > 1. Particularly, if you agree that Gonzales isn’t conservative enough for many on the right, does that lead you to any inferences about Estrada’s politics? You’re assuming without evidence that Bush has a secret plan to please the right. Furthermore, there are some on the right who don’t want Estrada, because they fear he may be liberal. > [@](#): > > 1. And how, in your view, has the Bush administration modified their nomination criteria in order to avoid another Souter? Feel free to speculate. Estrada cannot be another Souter, because Estrada isn’t nominated to the Supreme Court. Please ask that question again, if and when he is. > [@](#): > > 1. Following from that, what assurances do you believe Bush has that Estrada will be the type of Justice he wants? Bush says he wants judges who will interpret the law, rather than legislate from the bench. Estrada says he’s that sort of judge. The Federalist Society focuses on that type of judging. > [@](#): > > Please address my response to the distinction you made between “interpreting the law” and “legislating from the bench.” Specifically, if by the former you don’t mean Frankfurter-esque extreme judicial deference, what _is_ the difference between the two. Supplementing this with case citations would be wonderfully helpful. I’m flattered. This request is far beyond a non-lawyer. I could try to provide a few examples of what the distinction means to me as a non-lawyer FWIW. E.g., _Roe v. Wade_ and\* Casey\* have no basis in the Constitution. I consider them to be legislating from the bench. (I happen to like the result.) When the speech restrictions in McCain Feingold are thrown out later this year, I would consider that proper Constitutional protection of freedom of speech. [quote] [li]Have you abandoned your characterization of Souter as an activist?[/li][/quote] Yes. At any rate, I’m not willing to try to support that characterization. > [@](#): > > Mostly variations upon a theme-- Why did Bush nominate Estrada? And if ideology played a part, why is it not valid for the Senate to use ideology as a basis not to confirm? That’s an excellent question, which is worthy of a separate discussion. ISTM that the practice has been for the President to nominate judges mostly from his own party and for the Senate to confirm if the nominee is qualified. However, once judges get into the business of making law, then political ideology becomes all-important. A greater focus on ideology unfortunately means less focus on other attributes, like integrity, technical competence, judicial temperament, etc. > [@](#): > > In fact, a response to my post of 5:24 pm would be helpful in this regard: Aside from pointing up your determined blinderedness to things like the actual judicial philosophies of actual Supreme Court Justices–_cough_Scaliadoesn’tpracticejudicialrestraint_cough_–it dodges my fundamental point: that your “aw shucks” skepticism about Democrats’ motives and Estrada’s conservatism completely ignores Bush’s potential motives for making Estrada a nominee in the first place. For all I know, Bush may have evil motives. But, where’s the evidence? > [@](#): > > And if you agree to that–and unless you believe that the Senate should give the executive carte blanche to make choices on the basis of ideology, which is a creditable argument, albeit not one I’ve heard you make–then you agree that the Senate can consider ideology (even–or especially!–inferences thereof) in deciding whether to confirm the nominee. It depends on the level of the court. I think highly qualified judges wh o will follow the SC and precedent should be approved, assuming that their idiology is not wacky. > [@](#): > > Do you believe [Lopez](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10287) and [Morrison](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-5)to be examples of judicial activism? Why or why not? No. They seem to recognize the 10th Amendment. Actually, I consider a whole line of cases nearly wiping out the 10th Amendment to have been judicial activism. Of course, they are established law, by now. > [@](#): > > I’m genuinely curious to hear your answer [about Kennedy’s intelligence] --and I presume, since they must be the source of your view, that you’ll be citing cases to support it. It’s just a vague impression I had. Perhaps I was wrong. > [@](#): > > If Estrada is appointed to the D.C. Circuit, we both agree that he’ll have very little time in which to demonstrate his personal jurisprudence before being nominated for the High Court. Huh? I don’t even know that he ever will be nominated for the High Court. And, if he is, I don’t claim to know when it might happen. > [@](#): > > And if the Senate confirms him for the appellate court now, when he’s nominated to the Supreme Court in six months they’ll be hit with, “Well, you thought he was good enough for the D.C. Circuit! Nothing’s changed between now and then that makes him any worse a judicial candidate!” Sure, but that’s a weak argument. It didn’t do Bork any good. > [@](#): > > Do you believe that conservative lobbying groups will support the nomination of a not-staunchly-pro-life Justice? Honestly? First of all, I don’t know what you mean by “not-staunchly-pro-life.” Personal opposition to abortion? Commitment to overrule Roe v. Wade? Second, there are conservative organizations that are libertarian-type, which are not even anti-abortion. > [@](#): > > Um…sure he did, unless you have a really specific idea of what “making waves” means. Bork wrote a good number of significant opinions on the D.C. Circuit–123 of them, in fact. Yes, I did have a specific idea. Bork was attacked for lots of things during his nomination hearings (and rightfully so IMHO). But, he wasn’t attacked (or barely so) for his decisions as an appellate judge. Few, if any, of his decisions were overturned IIRC. I think he was on his best behavior, hoping to be elevated to the SC. But, the fact remains, if he hadn’t written all those wild articles, his judicial record would have been a pretty meager target for his opponents. > [@](#): > > So on what basis should senators judge whether he’d make a good Supreme Court Justice? Just like any other nominee, I guess. Evaluate his record, his testimony, his reputation, etc. as best they can. I’ve hired a lot people, and that’s what I’ve always done. It doesn’t guarantee perfect results, but I don’t know of any way to make perfect decisions. BTW I have a feeling that for some people, a “conservative activist” judge is one who doesn’t roll over and let the liberal activists do what they want to. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 6, 2003, 12:56am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/74 "2003-03-06T00:56:36Z")
> [@](#): > > \*Originally posted by december \* > I need some help here. I thought that case concerned [Pennsylvania’s abortion law](http://supct.law.cornell.edu/supct/html/91-744.ZS.html). Indeed. But the conservative activists Rehnquist, White, Scalia, and Thomas voted to overturn the _federal_ law guaranteeing abortion rights: _Roe v. Wade_. ---
**Author:** ![Scylla](https://avatars.discourse-cdn.com/v4/letter/s/a5b964/32.png) [@Scylla](https://boards.straightdope.com/u/Scylla)\ **Post date:** [March 6, 2003, 1:00am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/75 "2003-03-06T01:00:06Z")
Polycarp: There was no specific agenda behind my use of the word “enemy,” other than as opposition. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 6, 2003, 1:46am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/76 "2003-03-06T01:46:09Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Indeed. But the conservative activists Rehnquist, White, Scalia, and Thomas voted to overturn the _federal_ law guaranteeing abortion rights: _Roe v. Wade_. \*\* _Roe v. Wade_ is not a federal law. It’s a Supreme Court decision. **minty’s** comment illustrates my earlier comment: “For some people, a ‘conservative activist’ judge is one who doesn’t roll over and let the liberal activists do what they want to.” ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 6, 2003, 1:55am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/77 "2003-03-06T01:55:09Z")
_Roe v. Wade_ is not only federal law, it is federal _constitutional_ law. Your refusal to acknowledge that ridiculously simple fact merely illustrates the lengths you will go to in order to deny the reality that hard-core conservatives are at least as likely to legislate from the bench as hard-core liberals. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 6, 2003, 2:00am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/78 "2003-03-06T02:00:07Z")
And just out of curiosity, do you curse judicial activists every time a citizen of a state is denied the right to sue that state for violations of federal law in federal court? ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [March 6, 2003, 2:10am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/79 "2003-03-06T02:10:04Z")
> [@](#): > > \*Originally posted by minty green \* > _Roe v. Wade_ is not only federal law, it is federal _constitutional_ law. Your refusal to acknowledge that ridiculously simple fact merely illustrates the lengths you will go to in order to deny the reality that hard-core conservatives are at least as likely to legislate from the bench as hard-core liberals. To the contrary, your refusal to acknowledge the rediculously simple distinction between a judicial decision and a legislative law indicates the lengths that you will go to in order to deny the reality of liberal judicial activism. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 6, 2003, 2:13am UTC](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008/80 "2003-03-06T02:13:07Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*_Roe v. Wade_ is not only federal law, it is federal _constitutional_ law. \*\* BFD. So is _Bush v. Gore_. So was _Dred Scott_. Isn’t a SC Justice supposed to overturn a clearly wrong earlier decision? In _Roe v. Wade_ an earlier SC legislated from the bench. Fixing that decision is not legislating, although it is failing to follow precedent. Note that the majority in _Casey_ also didn’t follow the precedent of _Roe v. Wade._ They legislated further, with little pretence of Costitutional connection. (And, IMHO produced a pretty good law.) _Casey_ illustrates that SC “legislation” takes an issue away from Congress. We’ve seen the same thing with _Miranda._ A sweeping SC decision prevents Congress from fixing any problems that crop up after the original decision. That’s too bad, because laws generally don’t work perfectly. It takes some experimentation to get them to work right. Or, sometimes changing conditions cause a law to need revision. But, when the SC has taken over the issue, Congress and the state legislatures are shut out of the process (or restricted in what they can do.) We either live with the flaws or the SC has to take another whack, making it even clearer that they are actually legislating. [Previous page](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008.md?page=3) [Next page](https://boards.straightdope.com/t/how-can-estrada-answer-democrats-questions-if-they-dont-ask/159008.md?page=5)