I returned to this thread to state that I’d begun to read the testimony of Mr. Estrada to the Senate committee, from the link that bbonden kindly provided, and suddenly realized that he’s either given the answers I was looking for, or is an arrant liar under oath. I much prefer to believe the first of these, and have no grounds whatsoever to consider the second as anything but a vague outside possibility.
In short, he’s said that he believes in judicial self-restraint, finds his justification for interpretation in the legislative intent and in any case law affording parallels to the case under consideration, and is very much fixed on stare decisis as a guiding principle. In all this, he doesn’t differ much from Justice O’Connor. And he stressed at several points in the Senate hearing that those before him can expect a fair hearing, without prejudgment on the basis of his own political views.
I’m grateful, bbonden. These were the sorts of things that I felt that we needed to know about him – I concur with december that he shows every evidence of being an outstandingly good lawyer, but I wanted to know what kind of judge he’ll be, and until your link all I was getting was politicized answers.
But one thing troubles me as I read to catch up to present, and it’s from Scylla’s post. First, a quick aside:
A good fortune they engineered by refusing to consider a number of Clinton appointees. But of course the Democrats should not return tit for tat! :eek:
This one really irks me. I am a strong Democrat, but I do not consider any Republican to be my “enemy” – only, on occasion, my political opponent. Kim Jung Il, Saddam Hussein, Osama bin Laden, his lieutenants in Al Qaeda – these are enemies of Republican and Democrat alike.
I’m hoping the term was picked in haste and without much thought. Because if you as a typical Republican consider Democrats as “the enemy,” then God Save the United States, for no one else can!
I have yet to see any evidence presented that Estrada is more conservative than the average Republicans. I don’t think he is. Can you imagine Robert Bork spending years in the Clinton admnistration? Can you imagine Bork being Clinton’s point man as Supreme Court counsel? Can you imagine Bork winning a case against abortion clinic protestors on behalf of the National Organization for Women? I can’t.
If Estrada may not even be that conservative, what are the Democrats’ motives for this filibuster? [ul][li]Are they concerned that the first Hispanic Supreme Court nominee might be a Republican?[]Are they trying to keep power in the Senate, even though they’re now the minority?[]Are they responding to demands from certain pressure groups?[/ul]I don’t know whether any of these theories is correct, but none of them is particularly flattering.[/li]
BTW. Stofsky, I don’t have a handy cite for questions from Democratic Senators and meetings with them. However, on Fox News last night, Brit Hume said Estrada had met privately with “several” or “a few” Democratic Senators, and that he has a meeting scheduled Friday with Senator Byrd.
That question can be answered by another: if Estrada isn’t that conservative, why did Bush nominate him? If you think his administration would be satisfied with another moderate like Souter, you’re very much mistaken.
Absent strong evidence to the contrary, I don’t see any problem with Democratic senators assuming that because George W. Bush has vetted the guy, he’s gonna be a strong political conservative. (And as for whether that matters: like I said, I believe any criteria the president uses to nominate can be legitimately used by the Senate to reject.)
So are you saying, december, that the Bush administration has insufficiently screened their prize nominee?
By your circular reasoning, Democratic senators are obliged to filibuster any and all nominees for the apellate court, not just Hispanic ones. So the question remains, why are the Democrats wasting political capital in making unprecedented and (even from their partisan perspective) apparently unjustifiable moves to assassinate this particular nomination?
One gets the sense that we’re treading into the area where Democrats rely on unspoken beliefs or instincts, of which they themselves are only half-aware, and for which they have an aversion to dragging into the light of day.
I would characterize Souter as an activist liberal.
It depends on what you mean by “conservative.” Bush has repeatedly said that he wants judges who will interpret the law, rather than legislate from the bench. Estrada seems to share that legal philosophy.
OTOH Bush has never set out to find anti-abortion judges. In fact, consider the current White House Counsel, Alberto Gonzales. Bush appointed Gonzales to the Texas SC. Gonzales took a position against parental notification in a case involving a minor having an abortion.
No offense intended, but that’s completely nuts. In fact, it’s so crazy that I’m going to challenge you to prove it.
Souter has been on the Court for a more than a dozen years now, more than enough time to establish any credentials as a “liberal activist.” Therefore, you are respectfully requested to identify six cases (less than one case every other term) in which Souter voted to “create” a new right, or extend/expand a “liberal” right beyond its previously-established parameters.
Go on. Put some cases where your mouth is.
And you can knock abortion right the heck off that list, by the way. Souter voted to restrict abortion rights as they had been defined for more than two decades in Roe. Damn conservative activist!
Um, yeeeeessss. Methinks your bias is showing, and spectacularly. I await your response to minty’s challenge with interest.
Puh-leeze. In the Pledge thread, you got your ass handed to you by Polycarp, mhendo, and myself when you asserted that Scalia was a judicial conservative who interprets the law rather than legislating from the bench. I’m surprised you would try the same hoary tack again. (Actually, no, I’m not.)
Absent extreme deference to the legislature of the sort practiced by Justice Frankfurter, or consultation with the legislature on interpretive issues (as practiced in England), there is no qualitative difference between interpreting law and “legislating from the bench,” except that the first is what your guys do and the second is the nefarious practice of the other side. This is especially true on the Supreme Court, where Justices of every political stripe are far less bound by precedent.
A simple question: William Rehnquist is one of the most accomplished judicial activists of the past century (cites a-plenty available upon request). Clarence Thomas relies upon his interpretation of the Framers’ original intent to overturn congressional legislation (see, e.g., Lopez). Anthony Kennedy tends to defer to legislative judgment. And Stephen Breyer, relying more than any other Justice on legislative history to interpret statutory language, is loathe to do anything that would upset congressional judgment. Of these four Justices–three conservatives and a liberal–which do you suppose President Bush would be most pleased to have Estrada emulate during his time on the bench? That is–and you didn’t really answer this the first time around–why did Bush nominate Estrada? Would he be happy with another Souter? Another Kennedy? Another Breyer?
Bush isn’t stupid. He knows his party isn’t going to have control of Congress forever. Do you really think he’d be satisfied with a Justice like Frankfurter, who deferred to the legislature when they were passing New Deal programs, and continued to defer to them when they were dragging their feet on civil rights? At bottom, a president nominates Justices he believes will interpret the law the way he thinks it should be interpreted. The same is true for judges being groomed to be Justices.
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? David Souter was moved 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. 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?
Doghouse Reilly:
How is my reasoning circular? First, I think ideological and jurisprudential balance on the courts is a legitimate goal; to the extent that senators feel the bench is at present tilted too much to the right, I think they’re entitled–not “obliged”–to refuse to confirm nominees about whose ideology they have no real assurance. Second, “this particular nomination” is being made, as is universally acknowledged, so that this particular nominee might be elevated to the Supreme Court tout suite upon a vacancy. More scrutiny should be paid in those cases, I’d think. Third, “apparently unjustifiable” how? I agree that Democratic questioning of the nominee should be more searching and substantive, but that doesn’t negate the justification (constitutionally derived, by the way) for their advising and consenting upon this nomination. Hell, if fifty-one senators didn’t like this guy’s hat, they’d be within their constitutional right to reject his nomination. That they suspect Bush of pushing through a stealth conservative nominee (based on the simple assumption that Bush is behaving rationally and is in poss
Um, yeeeeessss. Methinks your bias is showing, and spectacularly. I await your response to minty’s challenge with interest.
Puh-leeze. In the Pledge thread, you got your ass handed to you by Polycarp, mhendo, and myself when you asserted that Scalia was a judicial conservative who interprets the law rather than legislating from the bench. I’m surprised you would try the same hoary tack again. (Actually, no, I’m not.)
Absent extreme deference to the legislature of the sort practiced by Justice Frankfurter, or consultation with the legislature on interpretive issues (as practiced in England), there is no qualitative difference between interpreting law and “legislating from the bench,” except that the first is what your guys do and the second is the nefarious practice of the other side. This is especially true on the Supreme Court, where Justices of every political stripe are far less bound by precedent.
A simple question: William Rehnquist is one of the most accomplished judicial activists of the past century (cites a-plenty available upon request). Clarence Thomas relies upon his interpretation of the Framers’ original intent to overturn congressional legislation (see, e.g., Lopez). Anthony Kennedy tends to defer to legislative judgment. And Stephen Breyer, relying more than any other Justice on legislative history to interpret statutory language, is loathe to do anything that would upset congressional judgment. Of these four Justices–three conservatives and a liberal–which do you suppose President Bush would be most pleased to have Estrada emulate during his time on the bench? That is–and you didn’t really answer this the first time around–why did Bush nominate Estrada? Would he be happy with another Souter? Another Kennedy? Another Breyer?
Bush isn’t stupid. He knows his party isn’t going to have control of Congress forever. Do you really think he’d be satisfied with a Justice like Frankfurter, who deferred to the legislature when they were passing New Deal programs, and continued to defer to them when they were dragging their feet on civil rights? At bottom, a president nominates Justices he believes will interpret the law the way he thinks it should be interpreted. The same is true for judges being groomed to be Justices.
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? David Souter was moved 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. 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?
Doghouse Reilly:
How is my reasoning circular? First, I think ideological and jurisprudential balance on the courts is a legitimate goal; to the extent that senators feel the bench is at present tilted too much to the right, I think they’re entitled–not “obliged”–to refuse to confirm nominees about whose ideology they have no real assurance. Second, “this particular nomination” is being made, as is universally acknowledged, so that this particular nominee might be elevated to the Supreme Court tout suite upon a vacancy. More scrutiny should be paid in those cases, I’d think. Third, “apparently unjustifiable” how? I agree that Democratic questioning of the nominee should be more searching and substantive, but that doesn’t negate the justification (constitutionally derived, by the way) for their advising and consenting upon this nomination. Hell, if fifty-one senators didn’t like this guy’s hat, they’d be within their constitutional right to reject his nomination. That they suspect Bush of pushing through a stealth conservative nominee (based on the simple assumption that Bush is behaving rationally and is in possession of more information about the nominee than the senators themselves) is eminently defensible.
One does? Only if one is accustomed to fling about accusations of ugly hidden impropriety.
If I’m crazy, at least I have lots of company here in our padded cell.
Great questions. I’d like to see Estrada spend a few years at the appellate level. If the Dems had approved him when he was first nominated, as they ought to have done, he would have two years of experience by now. It’s also about time we had a Hispanic SC justice. Given the Democrats stalling tactics, there’s apt to be a conflict between wanting lots of experience and wanting a Hispanic SC Justice.
December, you were not asked for proof of who thinks Souter is a liberal – you were asked for evidence that he was “an activist liberal judge.” To show you the difference, consider that there is a world of evidence that Felix Frankfurter was a political liberal. But his jurisprudence was so thoroughly marked by deference to the presumption that a legislature was acting constitutionally unless it could be demonstrably proven otherwise, that showing him as a liberal on SCOTUS is quite difficult.
You made an assertion; it’s your obligation to prove it, not with the opinions of pundits on his presumed political stance, but with evidence that supports your assertion. If he’s “an activist liberal judge,” there must be a wealth of information available that shows cases in which he has “made new law” in a liberal fashion – find 'em. Or withdraw your assertion.
W/R/T Estrada, on the presumption that his statements in the committee hearings fully disclose his jurisprudential stance without unspoken reservation, I’d like to see him serve only long enough to get some “seasoning” at the appellate level, and then be nominated for a high court seat. We need another Kennedy/O’Connor there (especially if O’Connor does take her retirement soon). The activist conservatives are making too much new law.
Goodness, you mean the hard-core conservative pundits whose views you parrot at every opportunity think the same thing you do? What a shocker.
C’mon, december. For once in your life, why don’t you try to provide some factual authority for your claims instead of just regurgitating someone else’s unsupported commentary? If Souter’s such a “liberal activist,” where’s the proof? Show me the votes. Cite me the cases.
So, Poly, I assume you’re not troubled by that part of his testimony where the told Senator Feinstein that he’d never given a second thought to the reasoning of the Court in Roe v. Wade? That he just never had the opportunity or inclination to read the most controversial opinion of the last 30 years?
Here’s an article from Reuters via Yahoo News pretty much confirming the cite in the OP.
Note that most of Estrada’s former supervisors in the Justice Department are Democrats. They should be in an excellent position to evaluate his competence and his political bias, if any.
Sauce for the goose
minty green, you asserted that all five of my cites are hard-core, conservative pundits. Quoting our friend, Polycarp, “You made an assertion; it’s your obligation to prove it.”
Furthermore, following Polycarp’s demands, it’s not sufficient to find people whose opinion it is that these sources are conservative. If they’re all “hard-core, conservative pundits,” there must be a wealth of information available that shows cases in which they have taken hard-core conservative positions – find 'em. Or withdraw your assertion.
If you were undergoing brain surgery, December, would you choose a neurosurgeon on the testimony of numerous people, many of whom you respect, that he is a good family man, brought himself up to his current state in life despite numerous handicaps, is kind to children and small dogs, and performed superbly as the physician on duty in an emergency room for several years, or would you look for evidence that he’s capable of doing expert neurosurgery? And if the American Academy of Neurosurgeons says that they have evidence as to whether he is or not but won’t give it out to a non-M.D., and he’s declined to request that they do so, would you not think twice about what might be in that evidence?
And as for your “evidence,” I’m confident that I can put together a minyan who would confidently assert to me, in private e-mail or in the Pit, that you are a flaming asshole. That evidence would not, of course, prove that you are a flaming asshole; only the evidence of what you say or do not say would prove or disprove that assertion. I don’t care if William F. Buckley, Rush Limbaugh, Matt Drudge, and Molly McGrory come together in an unprecedented agreement that Souter is a liberal – you’ve said that he’s an activist liberal judge; surely you have grounds for this statement, which has a very specific meaning spelled out in detail in this and the other Estrada thread. “Judicial activism” is the reverse of “judicial self-restraint”; and “liberal” has a particular code meaning in terms of stances on issues. Show me where Souter has written into the Constitution his views in an activist liberal manner through majority opinions he has authored, or withdraw the statement.
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.
Anyway, minty and Poly got here already, so let me just hit the highlights:
[ol]
[li]december: answer the rest of my previous post, please. Thanks.[/li][li]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.[/li][li]Do you, december, think Bush and conservatives generally will be happy if Estrada turns out to be a Justice like Souter?[/li][li]What about like Kennedy?[/li][li]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? 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.[/li][li]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’ in the middle.[/li][li]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.[/li][/ol]
Oh, also: I’m still looking, per preview, for some acknowledgment from december that “liberal” != “activist liberal.” In the meantime, when I get free tonight I’ll mosey down to my law school’s library and take a look at CQ’s Supreme Court Compendium: they offer a statistical analysis of Justices’ positions in cases that roughly equates ideologically. I’ll let you know how they characterize Souter.
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.
