# Should Democratic Senators Filibuster the Estrada Nomination? **URL:** \ **Category:** Great Debates\ **Created:** [February 6, 2003, 12:44am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084 "2003-02-06T00:44:13Z")\ **Posts on this page:** 20\ **Page:** 7
**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:** [February 10, 2003, 3:33pm UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/121 "2003-02-10T15:33:45Z")
A government lawyer serves the executive branch, not the president personally. That was a bit of an issue at one point during the perpertual investigations of Pres. Clinton, who lost in his attempt to keep some discussions with the White House Counsel privileged because they were discussing his _personal_ legal problems, not legal problems of the Executive Branch. It is my understanding that the White House _could_ have waived the privilege, and chose not to do so. ---
**Author:** ![bbonden](https://avatars.discourse-cdn.com/v4/letter/b/ecb155/32.png) [@bbonden](https://boards.straightdope.com/u/bbonden)\ **Post date:** [February 10, 2003, 5:05pm UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/122 "2003-02-10T17:05:41Z")
For those who are arguing that “lack of knowledge” of Estrada’s views is sufficient reason to disqualify him: Every Senator on the Judicary Committee had the opportunity to give Estrada written questions to answer after (and in light of) his hearing testimony. Two did. The Senators who complain most loudly now did not. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [February 10, 2003, 5:14pm UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/123 "2003-02-10T17:14:36Z")
Before I start I’d just like to mention that I read the transcript of that hearing and all it did was stir an intense desire to kick every single member of that committee right in the ass. This is supposed to be the SENATE ferchrissake! What kind of juvenile debate bullshit is crap like this > [@](#): > > _I believe this was the work of Senator Reid, but I don’t have enough experience with reading such transcripts to tell exactly who is speaking when_ > > Mr. President, this is the New York Times. It is a newspaper that has circulation not in the tens of thousands or hundreds of thousands but in the millions. > > Among other things, this editorial states: YEA! Citing an **editorial** AND some form of the fallacies of argumentum ad numerum/Appeal to authority! The absolute clincher was when they were wrapping it up and they said something like “we’ve had a good debate today” or “this has been a good debate”. It reminds me of an old saying, “laws are like sausage. You have more respect for them if you don’t know how they’re made.” Indeed. Now on to other business. > [@](#): > > \*Originally posted by december \* > **This canard has long been discredited. The Dems asked for confidential Justice Dept work papers, which should never be made public. From the same cite, testimony of Sen. Hatch,** Show me a cite from a Justice Department official using the word “confidential” in regards to these documents or retract it. I’ve read a lot of articles and even transcripts about this case now and I’ve not seen this word used by anyone but you. For instance, in the transcript you quoted, the word “confidential” is not used at all even though the documents in question are discussed. Surely you are aware you are not at liberty to declare these documents confidential on your own authority. I have seen the administration claim “privilege” which is emphatically NOT the same thing. Your current line of arguement, “but it’s never been done!” sounds like the whining of an inept chess player when his opponent did not fall for the [Scholar’s Mate](http://www.chesscorner.com/tutorial/basic/scholars/scholars.htm)(four-move checkmate, one of, if not the oldest trick in the book). The senators are under one obligation, a constitutional one, to advise and consent. Selection criteria used for previous nominees are NOT binding precedent. Find a new trick, your opponent isn’t going to fall for the Scholar’s Mate again. Enjoy, Steven ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 10, 2003, 5:36pm UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/124 "2003-02-10T17:36:39Z")
I think the degree to which Executive Department papers, even those done in the context of legal advice, are confidential, was spelled out quite explicitly in _U.S. v. Nixon_, 1974. And the bottom line is that while the President and his senior appointees may expect a high degree of confidentiality, such paperwork may and should be released when the good of the nation depends on it, as in when they are needed as evidence for the proper conduct of a trial or a Congressional investigation. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [February 11, 2003, 9:42pm UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/125 "2003-02-11T21:42:12Z")
An actual filibuster battle is getting closer. > [@](#): > > After threatening a filibuster for weeks, Democrats emerged from their weekly policy luncheon Tuesday with enough support within their ranks to take on the White House and the Republican Senate majority in an increasingly contentious battle over Estrada’s nomination. > > Senate Republicans, meanwhile, threatened to force the Democrats to stay in session until a final vote was taken. [http://www.boston.com/dailynews/042/wash/Democrats\_say\_they\_have\_enough:.shtml](http://www.boston.com/dailynews/042/wash/Democrats_say_they_have_enough:.shtml) ---
**Author:** ![leander](https://avatars.discourse-cdn.com/v4/letter/l/bcef8e/32.png) [@leander](https://boards.straightdope.com/u/leander)\ **Post date:** [February 11, 2003, 10:00pm UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/126 "2003-02-11T22:00:03Z")
> [@](#): > > \*Originally posted by december \* > \*\*An actual filibuster battle is getting closer. \*\* **Good**. Now maybe he’ll start answering questions: > [@](#): > > Democratic Leader Tom Daschle, who has 48 Democrats in his caucus, said Democrats will not allow Republicans to vote on the nomination until the White House makes Estrada answer more of their questions. And maybe now he’ll be a bit more open about his past: > [@](#): > > Daschle and top Judiciary Democrat Patrick Leahy of Vermont also want Estrada to turn over memos he wrote while working for the Solicitor General’s office at the Justice Department, saying those documents will reveal how Estrada thinks. The Justice Department previously had refused to release the memos. And when he does, _then_ vote. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [February 12, 2003, 1:58am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/127 "2003-02-12T01:58:31Z")
> [@](#): > > **leander** > _-------------------------------------------------------------------------------- > An actual filibuster battle is getting closer. > --------------------------------------------------------------------------------_ > \*\*Good. Now maybe he’ll start answering questions. \*\*Strangely enough both sides of this debate want to see the filibuster take place. Bush will never release the memos, because it would be improper. Also, it wouldn’t do any good. These memos are just a pretext. If they were released, the Democrats would seize on something in the memos as a new pretext. Meanwhile, on FNC Special Report, I just saw the head of the largest and oldest Hispanic organization in the country stand with Republicans and demand that the Dems vote for Estrada. He deplored Schumer’s leadership role, and pointed out that Schumer is up for re-election in 2004. This battle could move a lot of Hispanic voters from the Democratic camp to the Republican camp. The only question is just how badly the Democrats will be hurt politically by this. I love 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:** [February 12, 2003, 2:08am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/128 "2003-02-12T02:08:36Z")
> [@](#): > > Bush will never release the memos, because it would be improper. Nonsense. Those memos were produced for the executive branch, and Bush is the executive. The privilege is his to waive, just as if a client of mine were to give someone a memo I did for them. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [February 12, 2003, 2:13am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/129 "2003-02-12T02:13:00Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Nonsense. Those memos were produced for the executive branch, and Bush is the executive. The privilege is his to waive, just as if a client of mine were to give someone a memo I did for them. \*\* If you say Bush has the power to release the memos, I assume you’re correct. However, all seven living former Solicitors General say it would be improper to release them. The group is split 4-3 between Dems and Reps (although I can’t remember which party has the 4). These former SGs ought to know what’s proper in this case. ---
**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:** [February 12, 2003, 2:18am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/130 "2003-02-12T02:18:31Z")
Well duh. They don’t want the president releasing their memos. I’d complain if GigantoCorp released my memos to them. But the client is the owner of the documents produced by the lawyer, and the client is the person who gets to decide whether they stay private. The lawyer has no veto over that decision. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 12, 2003, 2:22am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/131 "2003-02-12T02:22:45Z")
In view of the precedent I mentioned in my last post here, I’d like to point out a rather peculiar analogy that occurred to me in reading **december** ’s post just above. I need to emphasize that the second post here is \*\*not something **december** said, to avoid any insulting misattribution of it to him. > [@](#): > > _Originally posted by **december** _ > Strangely enough both sides of this debate want to see the filibuster take place. Bush will never release the memos, because it would be improper. Also, it wouldn’t do any good. These memos are just a pretext. If they were released, the Democrats would seize on something in the memos as a new pretext. Change two words in this paragraph, and you have the following: > [@](#): > > _Based on a post originally posted by **december** with underscored language changed_ > Strangely enough both sides of this debate want to see the filibuster take place. Nixon will never release the tapes, because it would be improper. Also, it wouldn’t do any good. These tapes are just a pretext. If they were released, the Democrats would seize on something in the tapes as a new pretext. Needless to say, I am not accusing Mr. Bush or Mr. Estrada of Watergate-style hijinks. But I’m drawing the analogy to make the point that there are legitimate grounds in this case for the release of at least some of Mr. Estrada’s memos, in order that the sort of investigation into his jurisprudential philosophy that I and others have been saying is proper can be appropriately done by the committee assigned to carry out the investigative stage of the Senate’s constitutional duty. To give **december** his due, I suspect that there are some less-than-scrupulous politicans, publicists, and polemicists who will use the tone of material written in a counsel-for-the-government status as argument against Mr. Estrada’s ability to judge fairly – and this would be unjust, and I would hope fair-minded liberals and conseratives alike would speak out against it. But there are serious grounds for questioning what Mr. Estrada’s capacity as a judge might be, those memos would be the obvious source for interpreting his jurisprudential philosophy, and precedent indicates that they, or a selection from among them if there are security or confidentiality questions still associated with a part of them, should be released. > [@](#): > > The only question is just how badly the Democrats will be hurt politically by this. I love it! I would never hope that a competent Republican who is attempting to do his duty by the country should be hurt politically by attempting to discharge the duties of his office. But you are making it increasingly clear that at least some Republicans are less interested in the welfare of their country than they are in the welfare of their party. I can only hope that Messrs. Bush, Rumsfeld, Powell, and Ms. Rice are not of that ilk. ---
**Author:** ![bbonden](https://avatars.discourse-cdn.com/v4/letter/b/ecb155/32.png) [@bbonden](https://boards.straightdope.com/u/bbonden)\ **Post date:** [February 12, 2003, 2:26am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/132 "2003-02-12T02:26:16Z")
> [@](#): > > Nonsense. Those memos were produced for the executive branch, and Bush is the executive. The privilege is his to waive, just as if a client of mine were to give someone a memo I did for them. **minty green** – I disagree. (1) I am not sure that the claim is “privilege.” It is my understanding that the memos are being withheld as “confidential” and necessary for the functioning of the office. I have not read the White House privilege decisions that arose out of Whitewater, but I think they apply. (2) I do not see why the memos could not have been subpoenaed if they were that important. At the very least, the question of privelege/confidentiality would then be put before a judge. (3) **december** ’s point was not about the niceties anyway; it was about propriety. That is the point the SGs’ letter speaks to, as well. (4) If the honorable Senators cared so much about the content of the memos, they could have asked Estrada, in hearing or in followup written questions, about the arguments that he made on behalf of the government. Only two out of the nineteen members of the judiciary committee submitted written questions, and I am unaware of any claims that Estrada’s answers to those questions were less than forthcoming. ---
**Author:** ![leander](https://avatars.discourse-cdn.com/v4/letter/l/bcef8e/32.png) [@leander](https://boards.straightdope.com/u/leander)\ **Post date:** [February 12, 2003, 2:29am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/133 "2003-02-12T02:29:05Z")
**december** - Since you seem to love [FNC](http://www.foxnews.com/story/0,2933,78229,00.html) so much, here’s a little something from the other side: > [@](#): > > House Democratic Caucus Chairman Bob Menendez, D-N.J., and others on Monday blasted the GOP for playing “the race card” on the Estrada issue. > > Republicans “can’t blatantly call for the end of affirmative action by characterizing it as a quota system while, at the same time, demanding that we support all Hispanic nominees simply because they are Hispanic,” Menendez said in a statement. > > “Mr. Hatch and the Republicans are the ones using a quota system. They accuse Democrats of being racists and anti-Hispanic, when we simply make informed decisions on judicial nominees like Miguel Estrada. They are the ones who play the race card.” Perhaps now Hispanics will see what the Republican party _really_ stands for. And the Party of minorities will get even more Hispanic voters than they already have. I love it! 😉 > [@](#): > > The Congressional Hispanic Caucus called for a formal apology from Hatch for what they considered allegations made by him that groups like the CHC are opposing Estrada because of an “anti-Hispanic bias.” > > “Your statement that our opposition is ‘…akin to the lioness eating her cubs - Democratic Latino community leaders turning on one of their own because he doesn’t fit their definition of ‘Latino’…’ is misguided.” ---
**Author:** ![bbonden](https://avatars.discourse-cdn.com/v4/letter/b/ecb155/32.png) [@bbonden](https://boards.straightdope.com/u/bbonden)\ **Post date:** [February 12, 2003, 2:33am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/134 "2003-02-12T02:33:22Z")
\*\*minty green, polycarp, leander, \*\* others if you know I have a question: What are the best arguments against Estrada? I have heard only the following: (1) We do not know enough. (This is what most of the debate has been about.) (2) Paul Bender said he was partisan. (3) An anonymous law student applying for a clerkship said that Estrada seemed to “screen” applicants based on an ideological litmus test. (4) Bush nominated him. (5) He is not a “real” Hispanic. I am asking quite frankly – have I missed something? (I am not gearing up for a followup, by the way; I just want to be sure I understand the full debate, not the limited parts I hear here and there.) ---
**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:** [February 12, 2003, 2:34am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/135 "2003-02-12T02:34:29Z")
> [@](#): > > \*Originally posted by bbonden \* > (1) I am not sure that the claim is “privilege.” It is my understanding that the memos are being withheld as “confidential” and necessary for the functioning of the office. I have not read the White House privilege decisions that arose out of Whitewater, but I think they apply. I’m talking about attorney-client privilege, not executive privilege. Executive privilege would not apply because the memos were (presumably) never addressed to the president for decision-making purposes. > [@](#): > > (2) I do not see why the memos could not have been subpoenaed if they were that important. It is next to impossible to breach attorney-client privilege unless the documents sought demonstrate criminal activity. > [@](#): > > (3) **december** ’s point was not about the niceties anyway; it was about propriety. That is the point the SGs’ letter speaks to, as well. Screw the SGs. Since Estrada refused to answer in anything other than platitudes, they are basically the only remaining source of information about how he thinks. > [@](#): > > (4) If the honorable Senators cared so much about the content of the memos, they could have asked Estrada, in hearing or in followup written questions, about the arguments that he made on behalf of the government. That’s not what we want to know about. The briefs and arguments are already public domain. What we want to know is what he personally thought about the law, not the position that he advocated on behalf of his clients. ---
**Author:** ![leander](https://avatars.discourse-cdn.com/v4/letter/l/bcef8e/32.png) [@leander](https://boards.straightdope.com/u/leander)\ **Post date:** [February 12, 2003, 2:58am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/136 "2003-02-12T02:58:15Z")
**bbonden** - Number (1) is enough for me. I simply want to know more about this man’s judicial belief system and ideology. Where _does_ he stand? (Obviously, the fact that Bush appointed him gives us some clue. And the fact that he refuses to come forward gives us another. But in the interest of fairness, I would simply just like to know.) Now I have no doubt that others have their own reasons, perhaps some of those you listed. And sadly, neither Dems nor Repubs are above political manuvering for purely partisan reasons. Yes, some Dems are probably using this issue simply to further their own agendas. Which sucks - and reflects poorly on the Democratic party. But at the end of the day, I believe that we should know more about _any_ judicial court appointee, regardless of race or who appointed him. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 12, 2003, 3:12am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/137 "2003-02-12T03:12:32Z")
Full disclosure: I’m a liberal Democrat. But I believe that the courts should be above political ideology, not panderer to it. So **leander** ’s first paragraph also speaks for me. The fact that the Republicans involved in this seem to be attempting to obfuscate instead of answering questions speaks to me that all is not right with this scenario – or perhaps is too far right! 😉 They were hardly this scrupulous about privilege in _les affaires_ Whitewater and Lewinsky, But if the truth came out and I found that Estrada was another Anthony Kennedy, I’d be quite willing to give him my support as a judge. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 12, 2003, 4:29am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/138 "2003-02-12T04:29:06Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Nonsense. Those memos were produced for the executive branch, and Bush is the executive. The privilege is his to waive, just as if a client of mine were to give someone a memo I did for them. \*\* I’m not so sure it’s that simple. The Solicitor General’s basic job description is to go to the SCOTUS and defend the laws passed by Congress from legal challenge. Yes, he’s in the executive branch, but in a very real way he is also an advocate for the legislature. I’m also pretty damned discomforted by the notion that a later executive can waive privilege on documents generated in a prior administration. The potential for abuse is huge. Imagine it’s re-election time, so Bush waives privilege on Clinton’s Solicitor General’s papers and orders them released in an effort to find some extreme-left reasoning to tar the new candidate (“These are the kinds of nutbars Democratic presidents put in positions of power”). I’m much more comfortable with the Solicitor General’s client being seen as institutional and thus the privilege being effectively un-waivable. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [February 12, 2003, 10:49am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/139 "2003-02-12T10:49:41Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\* Imagine it’s re-election time, so Bush waives privilege on Clinton’s Solicitor General’s papers and orders them released in an effort to find some extreme-left reasoning to tar the new candidate (“These are the kinds of nutbars Democratic presidents put in positions of power”). \*\* This is not hypothetical. Estrada _was_ in Clinton’s Solicitor General’s office. (Which BTW makes it unlikely that he’s a right wing nut case.) Many of the cases he brought to ther Supreme Court were on behalf of the Clinton administration. > [@](#): > > **Polycarp** > I’m a liberal Democrat…So **leander’s** first paragraph also speaks for me. That’s what makes this issue so delicious, politically. Liberal Democrats support the filibuster. The Democrats need to continue it, in order to keep their base happy. OTOH Republicans, are also energized by the filibuster. Independent voters may blame both parties equally. But, 41 million Hispanics will definitely blame the Democrats for resisting their guy and appreciate the Republicans for supporting their guy. **leander** , yes the Democrats can respond by attacking the Republicans for their opposition to affirmative action. But, they were going to do that anyhow. The Estrada issue adds something new and powerful to the mix. Also, in politics, the adage goes, _when you’re defending, you’re losing._ ---
**Author:** ![leander](https://avatars.discourse-cdn.com/v4/letter/l/bcef8e/32.png) [@leander](https://boards.straightdope.com/u/leander)\ **Post date:** [February 12, 2003, 11:19am UTC](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084/140 "2003-02-12T11:19:11Z")
**december** - the point, I think, is that Republicans (and you) are trying to turn race into a negative issue _against_ Dems. I find this very ironic and hypocritical, as Dems have historically been a party which represents the minority. I seriously doubt that anyone with 2 cents will be unable to see through the sophomoric and transparent attempt by Repubs to turn this into a racist issue. In fact, I have no doubt that this will seriously backfire, and that those 41 million Hispanics will see that Republicans are merely using them as a way to count more votes. [Previous page](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084.md?page=6) [Next page](https://boards.straightdope.com/t/should-democratic-senators-filibuster-the-estrada-nomination/153084.md?page=8)