Minty Green, three questions that are in the nature of hopefully brief hijacks:
[ul][li]U.S. v. Morrison. A short summary and why you see it as bad law? I’m curious as to why you rank it with Bowers v. Hardwick and Bush v. Gore as things that quickly come to mind that you disagree with.[/li][li]“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).” I’d like to read this; could you provide a link?[/li][li]"…to limiting or sidestepping them, as the Court appears set to do with the current sodomy case…" A link or your own analysis, perhaps in a separate thread (I started one a couple of months ago), would be very much appreciated.[/li][/ul]
Thank you for any responses to these, and I hope they do not unduly hijack this thread.
December, thanks for the fuller quote, and I apologize for failing to take note of the link.
With regard to Avalonian’s questions, I too would like to hear December’s response to all but the first. Having pursued this with him at inordinate length already, I can say that he appears convinced that the qualifications he has listed at my request several times appear to him sufficient for any person to make a judgment about Mr. Estrada’s judicial skills. I do not agree, but I can respect the idea that one can form a high opinion of his legal skills from those qualifications.
Finally, december, I’d appreciate your addressing, in more direct fashion than you have done, my second point in my 12/12 9:45 PM post – the one about “interpret law not make law” being a red herring and my consequent objection to Mr. Estrada’s apparent unwillingness to divulge his philosophy of Constitutional interpretation. From what I can infer of your stance on the judicial (as opposed to political) issues involved in this case, I would think that you would be quick to want to ensure that the court does not get another William O. Douglas or Frank Murphy, and would therefore want a clear statement of Estrada’s jurisprudential philosophy to be brought out and examined.
It’s a commerce clause case, striking down certain portions of the VAWA as being beyond the power of Congress to legislate. I disagree with it because it ignores the test for commerce clause power has been well established for 60 years: whether the subject regulated bears a reasonable relationship to interstate commerce. Congress made extensive, well-supported findings that domestic violence and gender-motivated violence costs the nation hundreds of millions of dollars in lost productivity, medical bills, etc. Morrisson was judicial activism at its worst, overruling the legislative branch in the exercise of its constitutionally-delegated powers.
Sorry, no links. As I recall, the criticism had appeared in one or two law review articles she had published before becoming a judge.
The petition they granted revisits the subject matter of Bowers, but presents the case primarily as an Equal Protection claim. EP was not at issue in the previous case, but it has been widely discussed since then as a possible way around the holding of Bowers that anti-sodomy laws do not violate substantive due process. The lower court upheld the law against challenge; because the outcome of the lower court was identical to Bowers, it is unlikely the SC would have accepted the petition for certiorari unless there was serious interest in rethinking the earlier case. EP will provide the Court with its way out of the corner it backed itself into with Bowers. Look for a 6-3 decision. You can, I’m sure, identify the votes.
So I gather you’re no huge fan of the Lopez decision either?
I don’t want to turn this into too much of a hijack, but if the commerce clause can effectively allow Congress to legislate anything with any sort of effect on commerce, then the concept of federalism is effectively a dead letter.
But the gun was manufactured of materials carried across state lines, and the school was built of materials from several states…
(I have a serious problem with stretching “interstate commerce” to the extremes that the courts since 1937 have allowed – not that I think the Feds. are prohibited from legislating in the areas it’s stretched to cover, but that I’d find Constitutional grounds in other places, like the “general welfare” clause and the Fourteenth, not in finding that (to wax hyperbolic) a man shooting a horse was guilty of a federal statute against animal cruelty that was constitutional in this case because the horseshoes on the horse had been carried in interstate commerce. ;))
In fact, Congress amended the act after Lopez was handed down. The crime is now defined by carrying a gun that has traveled in interstate commerce in a school zone. It’s still stupid policy-wise, but it’s now quite constitutonal. The fedeal prosecutor just has to prove that the gun was manufactured in Maryland and you were caught with it in a school zone in California.
Breyer disagrees, and he’s right: if violence against women bears a reasonable relationship to commerce, then surely so must education (and things detrimental thereto).
Of course, to Breyer this means that the GFSZA was constitutional. To my mind, it shows the problem of using the effects test.
There’s no question that the amount of information available to the Senate about Estrada is comparable to what they normally know about appellate court nominees. No nominee says in advance how he will vote on cases of interest. I encourage you to read Alberto Gonzales’s full letter. He makes the points more eloquantly than I could.
Justified? The Senate’s job is to be certain that Estrada would make a good appellate court judge; they have a huge amount of information confirming that he would indeed be a good judge. Don’t forget that Estrada spent 4 years in the Clinton Administration. He was Clinton’s point man for bringing cases to the Supreme Court. We know he’s not incompetent or a right wing nut case, because his boss, Clinton’s Solicitor General, gave him glowing recommendations as a judge.
Of course not. But, add to your assumptions the fact that Clinton’s Solicitor General says Estrada will make a great judge, Gore’s close advisor says Estrada will make a great judge, and others Estrada worked with from both parties say he will make a great judge. Now add in all his other qualifications. The answer is that there’s every reason to believe he’ll be an outstanding appellate court judge.
Of course. They are demanding work papers that should be kept confidential according to every living ex-Solicitor General, including 4 Democrats. They created this unique and bizarre excuse, because they couldn’t find anything to reasonably object to. Think about it: They are conducting the first filibuster in history for a lower court judge because they are not being given something that it would be improper to give them, according to all living former SGs, including 4 Democrats. That’s Catch-22.
Furthermore, Ted Kennedy has said that they were opposing him because they don’t want to see him nominated to the Supreme Court.
The Democrats have already gone far beyond simply acquiescing. They failed to act of Estrada’s nomination for over a year. They unimously voted against him. They criticized him a lot. They are holding up the entire Senate for the first such filibuster in history. Their voices are certainly heard.
However, there’s a point here. It has always been expected that a President will nominate people of his own political belief; the Senate’s resposibility has been to not confirm if the nominee is unqualified. (Although Bush deviated from this practice by nominating two Democrats who were not given a hearing by the prior Senate.) I think the Senate should stick to their traditional role.
If you were talking about the Supreme Court, you might be right. But, we’re talking about a lower court. Different standards apply. Robert Bork and Clarence Thomas were confirmed easily as appellate judges. The battles came when they were nominated for the Supreme Court.
I’ve been asked to address the controversy over the question requesting that Estrada name some earlier decisions he disagreed with. First of all, note that he was asked about Supreme Court decisions, but Estrada is nominated for an appellate court. Oone could make a better case for him to answer these questions if he were nominated for the Supremes.
In theory, he has an excuse for not answering the question. He could (and I think would) say that he hasn’t studied the cases in enough detail to give an evaluation as a judge. Even our friend minty green might feel the same way. It’s one thing to casually criticize a decision on a message board. But, if Justice Minty Green were hearing that case, I don’t think he’d say that he doesn’t need to pay attention to the arguments, because he is certain that he already knows the answer. Estrada had a right to not give a casual, off-the-cuff evaluation of a case to the Senate Judiciary Committee.
Estrada has a practical reason for not answering the question about decisions he disagrees with. The Democrats are not acting in good faith. Their goal is not to evaluate him; their goal is to defeat him. Why should he help them? They would vote against him even if he had given the type of answer cleverly suggested by Enderw24. If he said, e.g., that Plessey v. Ferguson was wrongly decided, why would that change any Senator’s mind?
If Schumer really wanted answers to his questions, he would have sent a letter to Estrada after the all-day hearing. That’s a common practice. Schumer was looking for an excuse to vote against Estrada. He never found one. So, now he says he’s voting against Estrada because Estrada never stepped up and gave him a reason to vote against him. As the Washington Post put it,
Well, at least you tried to answer some of my questions…
You say there’s “no question”… I think that’s exactly the question that needs to be asked. Obviously, for many people, there is a huge question as regards what information is appropriate here, and just what qualifies Estrada as an appellate judge. I’m apparently not the only one who sees that these questions do indeed exist, and they loom large.
You directed me to Gonzales’ long and meandering letter, which used a lot of verbage to say very little of substance. In turn, I direct you to the succinct Slate article originally pointed out by DoctorJ. In the article, Kinsley points out much of the Republican hypocrisy in playing the race card in this case. Specifically…
How do you respond to this? Isn’t the pot calling the kettle black here?
Which is only repeating what you said earlier, but not answering my question. I thought it was pretty clear, but let me rephrase: Estrada was asked basic, general questions about constituional law, not referring to any specific case or action pending. He refused to answer. Was he justified in his refusal, and if so, on what basis?
And further on this point, why does he refuse to answer, even to say that he doesn’t know enough to answer, unless he fears that his answer will cause him not to be confirmed?
And this is your “evidence” for saying that the Democrats are essentially lying. First of all, they are not only requesting work papers, they are asking for answers to reasonable questions they asked. Second, if the Democrats are lying, then what is their real reason for blocking Estrada’s confirmation? Think on that for a moment…
Are they? Wouldn’t you agree that they’re at risk of being steamrolled by the current poltical makeup of the Senate? Perhaps the filibuster is the last recourse for voices who aren’t being heard? I always thought that was its purpose.
december, you’ve gone to great lengths to craft vast conspiracies and racial excuses in this thread. And yet, all your theories are significantly less likely than the simplest answer: the Democrats who are conducting this filibuster don’t like the fact that Estrada has been less than forthcoming when asked direct questions, and they have no idea what sort of appellate judge he would make. Feel free to try and invent a reason more logical than that if you wish… so far you have been unsuccessful in doing so. All the reasons/scenarios you have postulated for the Democrats blocking Estrada thus far have been more complex (and thus less likely) than the simplest answer… which is simply what they’ve been saying all along.
I find it simultaneously amusing and frustrating when people like december (and for that matter, Bush himself) condemn the other side’s politics as “shameful,” even as they’re more than happy to use similar tactics when it suits their ends. This sort of pointless mudslinging is the result of the worst of party politics, and a patent refusal to even try and understand the other side’s true motivations. If Bush is truly saying that the Democrats are guilty of “shameful” politics, then he is guilty, himself, of the exact same thing.
december, try to grasp this: some people consider a candidate’s judicial philosophy to be an important criterion in confirming that candidate’s nomination. You seem to conflate constitutional philosophy with technical legal ability. They are not the same thing.
You keep referring back to indicia of technical competence – editorships on law review, positions held in government, etc, etc, etc. But no one here is disputing that Estrada possesses technical legal skills adequate for the job. So constant referrals to technical competence are irrelevant – that claim just isn’t in dispute.
The issue isn’t technical competence, it’s judicial philosophy. Now, as I’ve said, I support Estrada’s nomination in part because I don’t think the Senate should be delving deeply into a candidate’s philosophy – I think that shaping the judiciary is one of the prerogatives of the presidency, and that philosophical inquiry by the Senate should be minimal, for reasons I’ve stated earlier in this thread. But here’s the thing: you should recognize that there is a view of the Senate’s role in the nomination process that ascribes to them greater responsibility. That is the view being espoused here by minty and others.
If you believe – as minty, et al, do – that the Senate must understand a candidate’s judicial philosophy well enough to decide if, in their view, his philosophy is one they want parked on the federal bench, then the Senate must have sufficient information to make its choice. And if they don’t have that information, they would be derelict in their duty under the minty view if they elected to confirm anyway.
Again, you may disagree with that view of the Senate’s role (I certainly do). But the proper thing to do is to dispute that premise. Because if you accept that premise as true, then opposition to the Estrada nomination is in fact the correct position to take.**
Right now, thanks to a crappy M&A environment, I’m between jobs. I have a set of sterling letters of recommendation from some of the attorneys I worked with at my former place of employ (one in particular so praises my skill that I’m actually a little embarrassed by it).
And yet, oddly enough, the firms I’ve interviewed with still seem to want to form their own opinion as to my skills, rather than just relying on the praise of others. Can you imagine the nerve!?! I’ll be sure to forward them this thread and explain to them that, under the december view, the letters of recommendation alone should be sufficient for them to want to hire me (especially since I’m not applying for anything nearly as important as a life-tenured appellate judgeship). Thanks, december – maybe I can avoid interviewing entirely!
Hey, Dewey, we’re trying to get you and minty the next Federal judgeships. Nice to hear about those letters; they’ll come in handy, since under december’s standards, the Bush administration will be compelled to find you highly qualified! I’m sure he’ll be glad to make the necessary contacts among the 'Pubbies to grease your appointment through. (Need a clerk with expertise in the law but no formal legal training when you get named to the bench? ;))
I would just like to add that thanks to the prolonged dispute in the Senate, I worked 15 hours yesterday, not getting home until 1:30 a.m.
So, honestly, I don’t have much of an opinion since I’ve been too immersed in it to effectively form one anymore. But I do hope, for my sake, that they come to some resolution, so I can have my nights back.
No way, man. I’m holding out for a seat on the Texas Supreme Court. Austin’s way nicer than D.C., and discretionary review makes your workload so much more manageable than having to consider the merits of every appeal from every judgment in every federal court for five states.
Avalonian, that was a truly excellent post. Thank you for stating so clearly and effectively a positive Democratic position.
SNenc, you sound exhausted, but if you have a moment I would be very interested in hearing what is happening inside the walls of the Senate - even in the wee hours of the night. What’s the “sense” there of how this will end? Any feeling of how long the Dems will go on, or how adamant the Repubs are about forcing a vote? What’s the atmosphere like these days? Anyone starting to bend or fold?
Of course not. But we should sacrifice a secret SG office.
I’m constantly surprised by people who claim with a straight face that the ability to operate or argue in secret is somehow of value to a public servant. The CIA and FBI need some level of temporary secrecy in which to operate. But legal argument doesn’t benefit from secrecy unless the arguments are being made in bad faith.
Are you honestly suggesting we should tolerate or even encourage bad faith on the part of our judicial branch?
Your premise is incorrect. The formulation of legal argument does benefit from secrecy. Tremendously so. Which is why the duty of client confidentiality is so important. That benefit is the same whether the client is an individual, a corporation, or a government. The ability to kick around ideas without worrying about how they may sound on the front pages is of immense value.
Are you honestly suggesting we should tolerate or even encourage bad faith on the part of our judicial branch? **
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Your premise is incorrect. The formulation of legal argument does benefit from secrecy. Tremendously so. Which is why the duty of client confidentiality is so important. That benefit is the same whether the client is an individual, a corporation, or a government. The ability to kick around ideas without worrying about how they may sound on the front pages is of immense value.
Are you honestly suggesting we should tolerate or even encourage bad faith on the part of our judicial branch? **
[/QUOTE]
