Should Democratic Senators Filibuster the Estrada Nomination?

Great Debates
181

Actually, that particular comment was not about your cite. That happens to be my position on quoting Op-Eds. I’ve expressed this previously. However, I do think that your cite skewed the facts – see below.

Disagree. The difference is quite substantial, in the amount of confidentiality that is lost. If the Democrats offer to take the same deal and the administration refuses, the admin would have some explaining to do. Until then, no.

To the extent that they are willing to sacrifice the SG office to further their ends one might view it disfavorably.

The political angle is in this high-minded posturing about lack of evidence. The real deal is that they think he is conservative. This stuff about how they don’t have enough evidence is nonsense. If Clinton sent them such a guy with identical evidence, they would support him. (Of course, then the Republicans would oppose him).

I’m not sure what “argument” you refer to. I was merely speculating as to whether the Senate Democrats would be happy with limited access. No argument, and hence no evidence.

Oh, the old “he had it coming anyway” defense. I get it.

182

:confused: How do you know they DIDN’T offer to take the same deal?(limited access, promise of confidentiality) It seems you’re basing your criticism of my cite on your assumption that they’re asking for more than precedent has allowed. Still seems like hair splitting, the fact I was establishing is that it(senate access to JD memos during the nomination hearings) HAS happened, not the qualifiers of how often or how the access is restricted.**

Yep, born and raised Republican. :frowning: Sometimes I just can’t fight it down. Oh! Gotta run, I feel a “nuke Iraq” chant coming on. No one should have to carry such a burden [sub]sob[/sub]

Enjoy,
Steven

183

I don’t know if they’ve been offered the same deal (though I’ve not seen anything about it). What I do know is that the two are not comparable. The cite that I gave presents the limited access deal as being a compromise. IOW, the justice department refused to do one but did do the other. So the difference is significant, and to present them as the same thing is misleading. Unless you say that when your cite says “released attorney memos” he means allowing staffers to review them (& he is relying on information which we’ve not seen and which he does not specify that in this case as well such an offer is on the table). Believe what you want – I think he is conflating one with the other.

Interesting. december was a long-time liberal democrat. I guess you guys were meant for each other.

184

Alberto R. Gonzales, Counsel to the President has written a formal response to two Senators’ request for the internal memos. The response is long and thorough, as might be expected from a former Texas Supreme Court justice. Some highlights:

Gonzales’s letter goes on and on. It totally answers every argument that’s been raised here. In particular, the recommendations from Democrats Seamon, Waxman, Klain and other former colleagues confirm that his work in the SG’s office was not colored by partisanship. Therefore the requrest for his SG memos is just an excuse to delay or a scavenger hunt to find anything that can be use or misused against Estrada. It is not a good faith request IMHO.

185

What would a “good faith request” be, in your humble estimation? One from the Republicans, I am tempted to conclude.

186

Two points, december.

  1. I can completely grasp the idea that the qualifications you’ve outlined convince you that Estrada would be a good judge. Several times I have identified the three elements that are customarily used to evaluate the capacity for effectively doing constitutional law and the philosophy under which a judge so doing operates, and pointed out that they are not available in this case (with the possible exception of law journal articles on constitutional law that he may have written, which it seems evident no one has turned up, so my presumption is that he has not written any). Since he has not to date been a judge, he has rendered no decisions and written no opinions in that role. His writings, presumably analyzing the possible cases for and against litigation in which the SG’s office is involved, would furnish such evidence, and have not been produced, as has been discussed at length. I invited you to attempt to persuade me, by creative argument, why the evidence you have (quite courteously and repeatedly) proferred as grounds for his competence should convince me that he’s an excellent candidate – you merely referred back to the evidence you’ve given me. I trust you’re aware that I’m not convinced by it. The offer, however, remains open if you wish to undertake it. :slight_smile:

Forgive me for hostility here, but that is a classic red herring which has been dragged around so often for so long that it should really be given an honored display site in the National Museum of Natural History as a classic American fossil.

To say this implies that you have no idea of what “law” as understood by judges and lawyers means. To explain what I mean here, let me give you an example.

Let us say that a committee of those Dopers you have infuriated with your, uh, “unique” posting style and anti-Democrat argumentation decides to get together, extract quotes from your posts out of context to “prove” your incompetence as a statistician, and mails copies of the resulting document to all your clients with a cover letter suggesting that they really should reconsider retaining you for actuarial services. Infuriated by this, you file suit, identify which people have done this, and hale them into court.

After reviewing your counsel’s masterly presentation of the evidence and how it was twisted in an effort to discredit you, and a feeble attempt by the respondents to justify their actions, the judge says, “Well, this has been interesting. No decision. Court adjourned.”

I trust you would be upset by the results. But if the judge makes a ruling for you on that case, he is extending the precedents ably cited by your lawyer to cover the case before him. He is writing an opinion justifying, against possible appeal by the respondents (who did have the common sense to take exceptions here and there), why he found in your favor. His decision will be reported in the appropriate reports of court decisions. In short, he has made law – case law.

I can grasp that you may feel, and have tried to express by that old canard, that an opinion should be founded on (1) the language of the law in question or (2) the intent of the legislators, not on (3) the views of the judge as to what constitutes “justice” in some abstract sense in this particular case. But if you do feel so, then why are you so loath to accept the fact that many of us do not feel that a nominee for U.S. Circuit Court Judge who refuses to take a stand on whether or not he agrees with the first, second, or third option in the italicized material earlier in this paragraph should not be confirmed?

187

IMHO a request for additional information would be in good faith if
– the requester truly was uncertain of the individual’s suitability for the job *and *
– the requester believed that the additional information would resolve the uncertainty.

In this case, Ted Kennedy’s comments gave the show away. Democrats are not concerned about Estrada’s not being a good appellate judge. They’re concerned that he might be a strong SC candidate. Kennedy said they should stop him before he’s nominated for the SC.

Also, there’s no reason to believe that any particular Estrada work papers would give insight on how he would rule on specific cases of interest, such as Roe v. Wade. If the Democrats had a specific concern and knew that a particular work paper would answer it, they might be able to negotiate a review of that paper, in exchange for a positive vote if it came up negative. But, this request is just a fishing expedition. The Democrats are looking for dirt, or something that can be represented as dirt. .

Democrats have already taken several bad faith steps. They made an issue of his lack of judicial experience, although that’s common. They attacked him for failing to answer questions that they didn’t ask. They attacked him for failing to answer a question that he had answered in writing three months earlier. Mary Landrieu went back on her recent campaign promise to support Estrada. Most of all, the Democrats have done everything possible to not let him and other qualified Republicans be confirmed, right from the get-go.

Polycarp, would you not agree that there’s as much ro more reason to believe that Estrada would make a good judge as there was for the other judges on the D.C. circuit court when they were nominated? Or, at least, for the majority who had no prior judicial experience.

Another question: What could a Republican nominee ever do to convince you to support him? Bear in mind that it would be improper for the candidate to testify in advance how he would rule. What evidence would be adequate to prove that he would be a good judge?

188

Oh goodness, Ted Kennedy speaks for all the Democrats in the Senate? Somebody forgot to send me the memo.

189

I have been doing my absolute level best to keep political stance out of my thinking on this issue – a factor difficult to do since I am a Democrat and quite liberal, and I find the repeated Democrat-bashing to be quite irritating. I feel that statements made by Mr. Estrada at some point in his career regarding the sorts of jurisprudential questions that I have placed in this forum before would be most useful. These need not relate specifically to actual cases likely to come up. Consider, for example, Griswold v. Connecticut – the circumstances leading to that case or anything resembling it coming before the court are slightly less likely than the D.C. Circuit Court courtroom being invaded by a family of polar bears while court is in session. But Mr. Estrada’s analysis of the majority decision and dissents on this case would be most informative on his preferred interpretation of the Bill of Rights. His comments on Mr. Scalia’s extended essay on constitutional interpretation would be nearly as valuable, to take us away from actual cases. If I could ask him one question and receive a frank and thorough answer, it would be this: “Is there a constitutional right to privacy? Please explain the reasoning that undergirds your answer.” This does not entail prejudgment of almost any case, presuming that he is not an absolutist on either the yea or nay side, but would be so vastly informative of how he does constitutional interpretation that it would be sufficient by itself to aid me in judging for or against his candidacy.

By the way, given my request for some evidence on his constitutional views that seems to be totally unforthcoming, I was pleased to see the following in the Gonzalez letter you quoted:

This in itself is not sufficient to convert me to pro-Estrada-ism, but it makes me feel much more comfortable about the man’s views. If the ellipsis is yours, december, and not Gonzalez’s or your source’s, I’d be grateful for your completing that particular quote from the letter.

190

I did provide a link to the entire letter. The more complete quote is

191

Here’s a good one from the [urk=“http://www.cnn.com/2003/ALLPOLITICS/02/13/senate.estrada/index.html”]CNN story on the start of the filibuster:

Well jeez, I can give you three off the top of my head: Bowers v. Hardwick, U.S. v. Morrison, and Bush v. Gore. The nominee is simply not credible when he says he can’t even think of three cases he disagrees with.

192

CNN story

193

You may be critical of Bush v. Gore, minty, but I would imagine Estrada has no problem with it. After all, he participated in the preparation of a brief in the Bush v. Gore election recount litigation. In fact, I wonder whether his opponents are motivated by revenge, at least to a degree. IMHO both Republican and Democratic Senators have often behaved in disgustingly petty fashion when dealing with individual nominees.

194

The point, since you’ve apparently failed to grasp it, is that any litigator can think of three bad Supreme Court cases at a moment’s notice. The nominee had zero credibility when he claimed he couldn’t think of any. Lying under oath! Perjury! Impeachment! Feh.

195

Chucky’s clearly looking for red meat here. But you’re right, there are credible ways to answer the question without giving him that red meat.

An interesting way to answer this question would have been to find three cases turning on some arcane point of law – cases so boring it makes your eyes bleed just reading them – and make some technical objection to the opinion. Most of SCOTUS’s cases aren’t earth-shattering civil rights decisions, after all.

I bet ol’ Chucky’s head would have exploded. :slight_smile:

Another way might have been to criticize cases that have since been overturned or are, for all practical purposes, a dead letter. Like the busing decisions from the early 70s, or the decision banning the death penalty which was reversed a couple of years later. Forty years gives you a lot of room to work.

196

december, I think minty’s point is that it’s possible to disagree with a case. It’s certainly possible to find three cases whose outcomes you disagree with in the last four decades. Up to four Supreme Court Justices do it on every single case. In the matter of Bowers v Hardwick, one Justice even came out two years later and said he made a mistake in voting the way he did.

Can you not think of three cases you disagree with in, heck let’s narrow the gap, the last ten years? Do you honestly believe that Estrada can’t? Or, worse, doesn’t believe there are any cases improperly decided?

197

Quite right, Dewey. You’d think he would at least criticize the pro bono death penalty case he lost. One is also reminded of Ginsburg’s criticism of the reasoning in Roe v. Wade (which, if you were paying attention to anything other than the abortion angle, showed that she believes in an Equal Protection clause with teeth–as subsequently demonstrated in the VMI case and several others).

198

Note too that saying a case was wrongly decided is not the same thing as saying you’d overturn it. Respect for precedent is something every judge should come equipped with. If I were appointed to the Supreme Court tomorrow and the issues of all three cases I identified above made return appearances on my docket, I would not vote to overturn any of them.

(I would, however, be quite open to limiting or sidestepping them, as the Court appears set to do with the current sodomy case, which this time presents equal protection issues instead of just due process. Look for Ginsburg to write the majority opinion. :slight_smile: )

199

From minty’s CNN article:

I’m going to try to make this simple.

december, do you truly think that the Senate Democrats (or any members of the Senate) have enough information to fulfill their obligation to advise and consent in this case? Please answer fully, keeping the quote above in mind, and the role the Senate is there to fulfill.

Do you think that Estrada’s refusal to answer even the most basic questions about the Constitution is justified?

Should the Senate rubber-stamp the nomination just because the President (any President) says the candidate is worthy?

Do you think the Democrats are lying about their reasons for blocking Estrada’s appointment?

And to follow up on that, if the Democrats are telling the truth about their reasons for the filibuster, what other means would you recommend for them to protest? Short of simply acquiescing to something they obviously disagree strongly with, what else could they do that would make their voices heard?

200

Michael Kinsley has a good article about this in today’s Slate.