My quote came from the Volokh Conspiracy blog, as I stated AND cited. It is run by Professor Volokh.
However, you’re in trouble, leander. By incorrectly identifying the source as World Net Daily, you have committed the felony of falsely attributing a quote. You are ordered to surrender immediately to the nearest mod-station. :dubious:
Don’t worry, leander, we’ll come and visit you in your hyper-cell from time to time. 
According to Thomas Jipping, J.D., senior fellow in Legal Studies at Concerned Women for America, the nation’s largest public policy women’s organization, Estrada DID answer Senators’ appropriate questions.
For those posters who disagree, I again challenge you to present evidence that Estrada revealed less than he ought to have.
december, what should one infer when you write this?
You’re right, though, you did cite the site and not the man. My bad - it just seemed as though you were attributing it to Volokh since you went on and on about his credentials and how we should all listen to him as a supreme authority.
december, step through this with me for a moment, OK?
First, let’s assume for the sake of argument that a nominee’s judicial philosophy is a legitimate thing for the Senate to inquire about in confirming a nominee (again, I take a somewhat dim view of this assumption, but many here disagree, and I don’t see you disputing the validity of that view).
Okay, so now that we’ve established that operative premise, it logically follows that the Senate must know what Estrada’s philosophy is. Since you clearly believe that Estrada has given the Senate ample evidence of his judicial philosophy, you too must be familiar with it. So please, december, answer me the following. Please include cites.
What is Estrada’s view of the contours of the first amendment? How expansive or restrictive a view does he take of, say, expressive conduct as speech?
How expansive does Estrada view the constitutional right to privacy as expounded by SCOTUS? Does he think that the SCOTUS opinions on privacy should be narrowly construed or broadly applied?
What is Estrada’s view on Congressional power under the commerce clause? There have been recent SCOTUS cases curtailing that power; does he think those cases should be read expansively or narrowly?
Bonus points for you, december: formulate the questions that the Senate Judiciary Committee could ask Estrada in order to get the information they wanted without stepping on the judicial canons of ethics. Since you apparantly agree that knowledge of a candidate’s philosophy is a legitimate avenue of inquiry for the Senate, then surely you agree there is a way to structure the questions so that the candidate may legitimately answer them. Please, do enlighten us.
I shall do my best.
These two statements are not the same. I think judicial philosophy is a legitimate thing to ask about, but not required for confirmation. ISTM that your real premise ought to be something like: it is so essential to know a appellate court nominee’s judicial philosophy that he must be filibustered if his judicial philosophy is not clear.
Of course I am incapable of answering these questions. I’m not even a lawyer.
I am confused by this section. I thought we had assumed for the sake of argument that knowledge of a candidate’s judicial philosophy was essential. Now, you appear to be saying that I actually believe the assumption.
I’m not clear where you’re going. You seem to be implying that there’s no way for Senators to discern the candidate’s judicial philosophy, since he should not testify as to how he would rule on cases that might come before him. To a mathmatician, this looks like a proof by contradiction. If one assumes that knowledge of judicial philosophy is essential, one reaches the contradiction that such knowledge cannot be obtained (except in those cases where the candidate’ publications or prior judicial rulings happen have demonstated it.) The contradiction proves that knowledge of judicial philosophy cannot be essential for confirmation.
I don’t think this is what you meant, DCU. I must be missing your point.
Actually I’d say it is appropriate to vote against a nominee if you don’t know his judicial philosophy. It becomes appropriate to filibuster the nomination when you believe the nominee’s judicial philosophy is being deliberately obscured by both the nominee and the administration.
Enjoy,
Steven
I don’t think so.
First off, let us assume his area of specialization is Free Speech. Even if that is his area of research for twenty years, it still does not make him a legitimate expert in his own area unless he earns it through multiple citations in peer-reviewed publications, is invited to conferences to talk, and the research community generally come to regard his work highly etc etc.
Secondly, how does being an expert in Free Speech case law make him an expert in judicial nomination procedures and requirements in the US Senate?
(That clerking thing is what you are using in Estrada’s defense too. That makes everyone who clerked with a Supreme Court justice an expert in judicial nominations, and also qualifies them to be a Judge!)
Fine, I think that is an accurate statement of the Democratic position.**
This is a cop-out. You don’t have to be a lawyer to answer those questions; you just have to know what Estrada’s views are. Just like you don’t have to be an ambassador to describe the Bush administration’s views on foriegn policy.**
That isn’t a contradiction and it proves no such thing. The better interpretation is that the Senate should say, “I’m sorry Mr. Candidate, but because we cannot get at your views, we cannot in good conscience confirm your appointment.”
I mean really, this is how it works in every other job interview situation in the world. Consider my point in an earlier post – I can give a law firm my resume and letters of recommendation, and that’s great, but they’re still going to have questions for me at the interview. If I refuse to answer those questions – whether by choice or by necessity – then they don’t have the information they need to make a hiring decision. Are you seriously suggesting that they should go ahead and hire me anyway? Isn’t the more plausible answer “I’m sorry, but without that information we just can’t hire you?”
I wish it was that easy. I hate interviewing.**
The point, quite simply, is that the Senate must have a way to get at that information. In the absence of publications or judicial opinions, that information must come from the candidate himself. All I want to know is, how do you propose that the Senate get that information?
What is so damned impossible about finding a nominee that doesn’t set somebodys alarm bells ringing. Are we given to understand that there are no jurists of a centrist solidity who are as qualified as Mr. Estrada?
For the sake of argument, I will accept that Mr. Estrada’s credentials are acceptable. I will insist, for the same argument, that his hispanic heritage is equally inconsequential. He remains, in my estimation, a severely conservative political entity.
Much of the argument is misfocused in this niggling aspect: if GeeDubya was intent of delivering quality personnel to the bench toot sweet, he could adopt the simple expedient of nominating competent, if not stellar, centrists.
If, on the other hand, he is intent on ramming heavy right jurists down our collective throats, then he is engaged in an act of realpolitik. No ethical or moral high ground can be claimed here. Such an act is entirely deserving of whatever parliamentary manuevers might defeat it.
Yep, clerking for a SC Justice is a big deal AFAIK. Maybe some lawyer can address that point.
DCU, we seem to be on different wave lengths.
What does that mean? You’re making some kind of analogy, but I’m not getting it. However, for appellate court judges, it has not previously been required to explain one’s judicial philosophy, as I think you have acknowledged.
AFAIK the only questions Estrada refused to answer were those about how he would rule in specific cases. Shouldn’t he refuse to answer those questions? Don’t other candidates refuse to answer those questions?
You say the Senate must have a way to get certain information. It would be helpful if you would explain in more detail just what this information ought to consist of. Maybe you could illustrate it, by explaining how it would apply to Justice O’Connor or Justice Breyer or Judge Ronnie White. I picked those two Justices because even though they’ve been on the SC for years, I wouldn’t know how to describe their judicial philosophy, except to say they seem “moderate.” Just what is it that you are looking for? If you were going a draft an adequate statement of judicial philosophy, how would it read?
elucidator, I have problems with a couple of your points.
Please don’t do us any favors. If you think his credentials are unacceptible, please say so. However, you ought to be aware that his credentials as appellate judge are outstanding enough so that he’s a likely Supreme Court nominee.
What is your evidence that he is severely conservative? He worked in the Clinton administration for 4 years. Clinton’s Solicitor General and other Democrats he worked with highly recommend Estrada. Those points suggest that he might be liberal.
Nobody really knows whether Estrada is “heavy right” or a closet liberal, like Souter. What Democrats do know for sure is that Estrada is Hispanic. According to Ted Kennedy, that’s the reason to oppose him now, before he’s nominated for the Supreme Court.
Huh? With all due respect, he hasn’t even been confirmed yet! I suspect a misphrasing on your part, sir.
Ooooo-kay. So Ted’s anti-Hispanic? You may be basing this on something already said, but for my edification, please cite some evidence for this assertion.
And, just out of curiosity, if you don’t know whether Estrada is “‘heavy right’ or a closet liberal, like Souter,” then why, with your well-known opposition to liberals in office, are you so anxious to see him confirmed? I suspect more than a little disingenuity here.
december, could you please provide a cite which shows Ted Kennedy saying that the reason to oppose him is that he’s Hispanic?
This thread has been very enlightening, thank you all. I have a few questions:
About the Volokh ideas: Is there a cite that shows President Bush has shown an interest in putting a Hispanic judge on the Supreme Court? If so, would confirming Estrada put him on a fast track for this position?
If yes, then it seems to me that both sides are playing a little racial politics, Republicans want the kudos for the first Hispanic SC justice, and the Democrats REALLY don’t want let them get that. This may be a bit childishly cynical and simplistic thinking on my part, but it seems the only explanation why the Democrats are pulling out the unprecedented filibuster. Their strong reaction would seem justified if the Republicans were pushing a stealth ultra-conservative but Estrada has been lauded by the Democrats he’s worked with as being fit for the job. In fact, I wouldn’t be surprised of he’s more centrist than the Republicans think, and might rule against conservative ideals if on the SC.
And about Estrada’s reluctance to speak: Have the Democrats asked more questions than is usual for this candidate? Has Estrada refused to answer a greater percentage of fair questions than is normal?
An answer to those two would persuade me more than the cites of the individual questions and responses.
-k
It’s not that uncommon for an appellate court nominee to already be regarded as a potential SC nominee. That was definitely the case with Clarence Thomas and it was more-or-less the case with Bork.
I supplied a cite in the OP for this:
The implication is that Kennedy was comparing the Hispanic Estrada to the black Thomas.
Here’s a cite I found via google, but I cannot vouch for the organization.
I’m anxious to see him confirmed for several reasons:[ul][li]I’m partial to immigrants who try to better themselves through education. My father was an immigrant and I was raised to value education as the road to success in America. []I think it woud be valuable politically to the Republicans to have the first Hispanic SC Justice. (However, it will also be good politically for the Republicans if Estrada is blocked by the Democrats after a long, public battle.)[]I hope Estrada is “conservative,” in the sense of not seeking to make law. I would not expect him to be “conservative” in the sense of anti-immigrant or anti-minority.[]Estrada is evidently very smart. I admire very smart people.[]I think the confirmation process has gotten way too politicized. This filibuster is a quantum leap in the wrong direction. I’d like to see qualified nominees routinely confirmed.[/ul]Kempis, I have read many articles indicating that President Bush has shown an interest in putting a Hispanic judge on the Supreme Court and that confirming Estrada put him on a fast track for this position. E.g., the Fox News cite above includes[/li][quote]
[The Democrats] also say it would be much harder to defeat Estrada for a Supreme Court seat if his confirmation goes smoothly now.
[/quote]
BTW, in serching for a cite, I came across this coincidental headline: Bush names first Hispanic to Florida’s Supreme Court
Actually, I see it less as a matter of race, and more as a matter of hiding one’s true ideology and later coming out as extremely conservative.
Also…
That comes from this rather lengthy essay by the Alliance for Justice, which covers a whole mess of issues december keeps bringing up. I cannot vouch for the organization. (Also, it’s a .doc, so if that’s a problem, I’ll see if I can find it elsewhere.)
I’m not convinced that the Republicans are hiding “ultra-conservative” Estrada memoranda in the Solicitor General’s office. If there’s evidence of hardcore-ism on the part of Estrada, I’d like to see it. No, being nominated by a Republican president doesn’t count. Sheesh.
Were there more instances of Estrada avoiding questions like the “SC decisions in the last 40 years”… or were most of the questions like Fienstein’s “Roe vs. Wade” question… where she was just trying to make him look like he was clamming up?
-k
Sorry, leander, Clarence Thomas was believed to be extremely conservative when he was nominated. His ideology was never “hidden.” In that respect, he is the opposite of Estrada.
We disposed of the Paul Bender thing pages ago. Bender gave Estrada nothing but praise when Estrada worked for him. Bender expressed the reservations only after Estrada was nominated. These reservations are contradicted by Bender’s real-time praise.
Also, Bender himself is a Democratic partisan. His criticism must be taken with a grain of salt.
Finally, why focus just on Bender? All the other Democrats who worked with Estrada in the SG’s department recommended him highly, including Bill Clinton’s Solicitor General. If Estrada were to judged by the Democrats who worked with him, the vote would be nearly unanimously favorable. The only vote against would be Bender.
This is not a difficult analogy to comprehend. The confirmation process is like a job interview. There is information the interviewers think is relevant to the hiring decision that the candidate will not provide. Therefore, the interviewers are appropriately denying the candidate the job. Do you get it now?
As for information on judicial philosophy being a new requirement – well, hardly. This has been a common line of inquiry since the Bork nomination. **
It is entirely possible to describe one’s judicial philosophy without prejudicing the litigants in future cases coming before you.
And both of those books are aimed at the layman, so spare me any “I’m not a lawyer” crying.