Should Democratic Senators Filibuster the Estrada Nomination?

[december]

*Originally posted by Polycarp *
Bottom line, December: You have a candidate nominated by the President, ranked as highly qualified by ABA (I assume that’s an accurate translation of “top qualification”), editor of a prestigious law school journal, graduate of that prestigious law school – but who has never judged a case, apparently has few if any papers, and declines to make any statements about his views on the law.

How in the world would I as a Senator be able to form an opinion of the man’s competence?

The Senate normally relies on the Judiciary Committee’s vote. It’s unheard of for an appeals court nominee to be filibustered.

A related question is, How should a President form an opinion of a potential judge’s competence? Somehow, Presidents have found a way to do so, even with appointees lacking a judicial record.

In the case of Estrada, there are more ways to evaluate his competence than those you’ve listed. After all, he was Solicitor General. He argued 15 cases before the Supreme Court. He clerked for a SC justice. He has a record and a reputation within the legal community.

jshore, who is FAIR? What credibility do they have? From what POV do they see the world? To answer that question, here’s a quote from one of your links

Examination of editorials in some of the most prominent dailies–the New York Times, the Washington Post, the Los Angeles Times and USA Today–on a range of economic and social issues shows that they tend to articulate the same centrist-to-right perspective that informs the rest of their reporting,

I subscribe to the New York Times. The only organization who thinks their editorials are “centrist-to-right” is the Onion.

ElvisL1ves, Ted Kennedy confirmed my allegation that Democratic opposition to Estrada is not because he’s weak, but because he’s strong enough to be a potential Supreme Court justice. From the cite in the OP

“We must filibuster Miguel Estrada’s nomination,” [Kennedy]told lawmakers at the weekly Democratic policy lunch. “The White House is almost telling us that they plan to nominate him to the Supreme Court. We can’t repeat the mistake we made with [Supreme Court Justice] Clarence Thomas.”

GIGObuster – In what way is Estrada’s nomination a “stunt”?

[ElvisL1ves]

Do you ever read your own cites? Kennedy said nothing about his “strength” or qualifications, only about his support from Bush (which is obvious).

[minty_green]

But don’t you get it, Elvis? Being nominated by a Republican president, by itself, means that the nominee is strong, highly qualified, utterly brilliant, and dead sexy. Res ipsa loquiter, dude.

[IzzyR]

Polycarp et al,

Has Estrada declind to answer questions about his judicial philosophy? Or has he merely declined to say how he would rule on specific hot-button issues?

[december]

*Originally posted by ElvisL1ves *
**Kennedy said nothing about his “strength” or qualifications, only about his support from Bush (which is obvious). **

Not explicitly, but the implication is there in the idea that he’s a potential SC justice. By comparison, I think Clinton nominee Ronnie White was treated shabbily by the Republicans, but nobody mentioned White as a potential SC member.

For a good explanation of why Estrada is considered so capable, here are a few highlights from Sen. Hatch’s opening statement to the Jud Committee

Although he had taken English classes during school in Honduras, he actually spoke very little English when he immigrated [at age 17]…He graduated magna cum laude and Phi Beta Kappa in 1983 from Columbia College, then magna cum laude in 1986 from Harvard Law School, where he was editor of the Harvard Law Review…

He clerked for Second Circuit Judge Amalya Kearse a Carter appointee–then Supreme Court Justice Anthony Kennedy. He worked as an associate at the law firm of Wachtell Lipton in New York City…worked as a Federal prosecutor in Manhattan, rising to become deputy chief of the appellate division. In recognition of his appellate skills, in spite of the fact that he has a speech handicap, he was hired by the Solicitor General’s Office during the first Bush administration. He stayed with the Solicitor General’s Office for most of the Clinton administration. When he left that Office, he joined the Washington, DC, office of Gibson, Dunn & Crutcher, where he has continued to excel as a partner…

Most lawyers are held in high esteem if they have argued even one case before the Supreme Court. Mr. Estrada has argued 15 cases before the States Supreme Court. This is an impressive accomplishment by any standard, but it is particularly remarkable when you take two additional factors into consideration. First, as I have noted, English is not Mr. Estrada’s native language. He has nevertheless mastered it to such a degree that he is considered to be one of the foremost appellate lawyers in our country. Second, his oral argument skills are even more extraordinary because, as I have mentioned, he has worked to overcome a speech impediment…

Mr. Klain’s letter to the committee in support of Mr. Estrada is particularly insightful. He wrote:

Mr. Estrada will bring an independent streak to his judging, that may serve to surprise those who nominated him–and I think will give every litigant, from any point of view, a fair chance to persuade Mr. Estrada of the rightness of his or her case.…

Another letter from more than a dozen of Mr. Estrada’s former colleagues at the Solicitor General’s office states that:

*… he is a person whose conduct is characterized by the utmost integrity and scrupulous fairness, as befits a nominee to the federal bench. *

Mr. Estrada’s supporters are not limited to prominent and well-connected Democrats and Republicans. We heard during his confirmation proceedings or hearings about Mr. Estrada’s pro bono efforts before the Supreme Court to overturn the conviction of death row inmate Tommy David Strickler. His cocounsel in that case, Barbara Hartung, wrote the committee that Mr. Estrada:

… values highly the just and proper application of the law. Mr. Estrada’s respect for the Constitution and the law may explain why he took on Mr. Strickler’s case, which at the bottom concerned the fundamental fairness of a capital trial and death sentence. I should note that Mr. Estrada and I have widely divergent political views…

Another letter in support of Mr. Estrada came from Leonard Joy, attorney in charge of the Legal Aid Society, Federal Defender Division in New York City, which is the community defender organization appointed to represent indigent defendants in Federal court at the trial and appellate levels. Mr. Joy, who frequently represented defendants whom Mr. Estrada prosecuted while he was an assistant U.S. Attorney, wrote that:

I found him to be a fair and straightforward prosecutor who did not treat defendants unduly harshly.

My comments:[ul][]Please read Hatch’s entire statement. This is a great appointment, not a “stunt,” as GIGObuster alleged. []Hatch’s statement should satisfy Polycarp’s question of how the Senate can evaluate Estrada’s competence.[]I have a particular esteem for Judge Kearse because she’s also a bridge champion, with several books to her credit. She would make a great SC Justice IMHO.[]Even without being a lawyer, I’ve heard of Wachtel-Lipton and of Gibson Dunn and Crutcher. Eat your heart out, minty. [*]Note that the letters of recommendation from (what I take to be) a death penalty opponent and an advocate for the poor. These letters suggest that Estrada isn’t that all conservative. [/ul]

[light_strand]

december, do you care to address Tejota’s post? I think it deserves as much.

[december]

*Originally posted by light strand *
**december, do you care to address Tejota’s post? I think it deserves as much. **

Sorry, I don’t know enough to respond. I won’t complain about the source. I sometimes read Joshua Micah Marshall’s blog. I consider him to be smart and thoughtful, even though he is a liberal, with whom I mostly disagree.

[Bricker]

I’d like to hear tejota withdraw his comment about no judicial experience being such a problem, or defend it further.

All to often, when a point is offered and then rebutted, the offereor merely sidesteps and continues to argue another point, without ever conceding the first.

This bugs me. It suggests either carelessness or a lack of intellectual honesty.

• Rick

[minty_green]

*Originally posted by december *
Eat your heart out, minty.

Funniest thing I’ve heard all day. Thanks for the giggle, d.

[Polycarp]

It’s unheard of for an appeals court nominee to be filibustered.

Prior to 1867, it was unheard of for a sitting President to be impeached; prior to 1998, it had been done once – by Radical Republicans, for attempting to remove a Cabinet member who was in direct opposition to the President’s policies.

IMHO, what’s “unheard of” is to suggest that a given party or political stance has rights that their opposition does not. Sens. Helms, Lott, et al. can play their games, to be sure, so long as they stay within the generous guidelines of “the political game,” but if they do so, their opposition is entitled to play by the same rules. To object to the allegedly planned Senate filibuster by saying that one on a nomination is “unheard of” is saying that the Republican House majorities of 1867 and 1999 were “not playing by the rules” in voting for an impeachment.

Has Estrada declind to answer questions about his judicial philosophy? Or has he merely declined to say how he would rule on specific hot-button issues?

The honest answer, Izzy is that I don’t know. I’m basing my stance on what december and others, including CRorex, have had to say – which to me says that he declined to give responsive answers. My assumption is that at least a few Senators have the common sense not to pressure on specific issues that he would justly have to decline to prejudge, but to ask questions based on jurisprudential philosophy that it would only be fair for him to answer responsively. The little independent reading I’ve been able to do on the question has not resolved this issue in my mind – too many stories are slanted for or against his candidacy.

I’m not averse to Estrada as a potential candidate for a judgeship on ideological grounds, as yet – but I’ve seen evidence that suggests his leanings to be ones I don’t agree with, and nothing other than the endorsement in december’s recent post to suggest he has the independent temperament and insight into the principles of the law that I’d look for in an appellate judge – and much as I respect Orrin Hatch, I decline to accept his views totius porcius.

[GIGObuster]

The reason why I still consider it a stunt is your OP december, in your last remark, you made it clear that it doesn’t matter if Estrada is not appointed, the calculation is to create a wedge issue so republicans will try to demonize the democrats to the Hispanics, After seeing the Clarence Thomas record in the Supreme court, I would be suspicious of any minority appointed by a Bush.

And I don’t trust Hatch, I do not trust Estrada’s relative lack of record compared to other Hispanics.

[leander]

“From his performance in front of the Judiciary Committee, and his unwillingness to share even the most basic information, you can draw one of two conclusions: Either this nominee knows nothing or he feels he needs to hide something,” Daschle said. “Neither is acceptable when it comes to a lifetime position on the second highest court in the land.”

Btw, haven’t you brought this issue up already, december, basically lying in your OP to provoke a strong anti-Democrat reaction?

[Mtgman]

Let me pose a simple question. Would Estrada have been nominated if he had refused to answer questions on his positions/political stance when they were posed by the President or his advisors responsible for evaluating potential nominees?

I find it unlikely he would have recieved the nomination if he had refused to answer, so I am going on the assumption that he did. Now we know for a fact that he refused to clearly state his position before the senate. Could a hypothetical conscientious senator honestly confirm an appointment when such a discrepancy exists? The President knows something about this nominee the senate has been denied. There are cases where the President can refuse to share such information with impunity(matters of security most notably), but I don’t believe this should be one of them. The picture of the type of judge Estrada will be that the President based his decision to nominate upon has not been revealed to the senate. Why should they confirm him?

Throw aside the strawmen of racial/minority status or political affiliation. You’ve got two parties(the President and the senate) who are supposed to co-operate on filling these judicial seats. How can this process work fairly if one side has information which is denied to the other? Would it not be the DUTY of the senate to block the nomination? Surely such an imbalance in information does not serve the best interests of the American people?

Enjoy,
Steven

PS minty, enjoy your vacation. If you get some shots of any hammerheads I’d love to see them sometime. We’re planning a get-together for Grace’s birthday ~22nd of Febuary(no thread yet, I’ll drop you a line when there is). Moxmaiden and I are planning on attending if at all possible. Hope to see you and yours sometime soon.

[litost]

Can we get hold of a transcript of Estrada’s performance in front of the Judiciary Committee? Or at least, a synopsis of what Daschle means by “most basic information”.

[IzzyR]

Mtgman, several points:

1. I doubt if the prez had to ask Estrada the type of questions that the Democrats want to - his team is presumably familiar enough with his general outlook, having worked with him. And there is some risk involved as well. David Souter was also thought to be a stealth candidate at the time he was nominated, but it turned out that he stealthed past the Republicans - did not work out as planned. In sum, I doubt if Bush’s people asked him outright how he would rule on Roe v. Wade, for example.

2. I don’t know if advice and consent is assumed to be a 50-50 partnership - I think the prez is generally assumed to have the lead. This is NOT to say that voting him down is not the prerogative of the Senate - rather, to say that the comaprison to what the president would or would not ask is not valid.

3. There is a difference between simply voting no and filibustering. The latter is something of an extreme tactic. I don’t think you would suggest that everyone who opposes anything should filibuster it. Again, you can make the case that Estrada is so terrible that it justifies an extreme tactic. But you can’t merely say it is the duty of the Senate to block the nomination because they lack some info.

I like the straightforward minty green approach. None of this highminded stuff. It’s all politics, on both sides. Play the game and see who wins.

[minty_green]

[hijack]

Looks like no hammerheads this weekend, Mtgman. I won’t know until tomorrow, but the Flower Garden Banks forecast is for 8-12 ft. seas. I may be at DFWdope tomorrow night after all. Of course, the next trip I can get on if this one is washed out is (you guessed it) Feb. 22. But if I do eventually get to dive before the sharks leave in April, and I do get decent pics, there will be a MPSIMS thread with appropriate photo links.

[/hijack]

[leander]

Of course, Republicans have never blocked or delayed an Hispanic judge’s nomination.

cough Richard Paez cough

[Mtgman]

Couldn’t find a transcript(may not be available because it was a Committee hearing and not a full-senate hearing) but there does seem to be evidence that one side of the nomination process has info the other is being denied access to. From this site

Lacking a public record [of decisions as a judge] his associations take on greater importance. For instance, Estrada is a partner at Gibson, Dunn & Crutcher, a Los Angeles-based law firm that represented President George W. Bush before the Supreme Court during the contested 2000 election. Estrada also worked for then-Solicitor General Kenneth Starr during the Bush Sr.'s administration and was a law clerk for Supreme Court Justice Anthony Kennedy. Estrada is also a member of the Federalist Society, an ultra-conservative group formed at the University of Chicago in 1983 with Antonin Scalia, the future Supreme Court justice, and Robert Bork as faculty advisers.

The lack of a record forces the inquiring mind to seek more information. After all Estrada could eventually become a Supreme Court Justice. It is frustrating when the Bush Administration refuses the request of the Senate Judiciary Committee for internal memos written by Miguel Estrada from 1992 to 1997 while working in the Office of the Solicitor General, a branch of the Justice Department, charged with arguing cases before the Supreme Court. Disingenuously the Bush administration has claimed privilege and prudence, In other words, Bush claims confidentiality, something denied to former President Bill Clinton.

The request of the Judiciary Committee is both reasonable and logical, and an attempt to learn how Estrada thinks about important legal topics. It is not out of the ordinary and the Justice Department has released attorney memos in the past to ease nominations. Given the slimness of Estrada’s public record and a charge by a former supervisor that Estrada advocates extreme positions more aligned with his own ideological interests than the Constitution, Bush’s refusal to release the memos raises a “red flag” and questions: What is Bush trying to hide? Since Estrada has never served as a judge on a lower court, the memos offer an opportunity to objectively find how he is apt to analyze cases as a judge.

I couldn’t find any more info on the “charge by a former supervisor” bit.

As I said earlier, I don’t believe a senator of conscience could confirm an appointee if they believe information about that person(who would become a very powerful figure in the government upon confirmation) is being deliberately(and possibly maliciously) withheld from consideration. I also believe filibustering would be a good option for a senator of conscience if they believed this information were being deliberately withheld to get an otherwise undesireable candidate into a position of power.

I never said the process was 50/50. It isn’t. The Senate doesn’t get to make nominations for example. However, consider the case of a Notary Public. If I take a document to be notarized(as an analogy for a nomination being confirmed) and I refuse to let the notary read certain sections of it or answer their questions as to what they’re affirming I can promise you that a notary of conscience will refuse to notarize my document. I see no difference here. The President has made a nomination. The senate has a duty to examine this nominee and confirm, reject, or even attempt to block the appointment. As I mentioned, if a senator believes they are being misled as to the character of the nominee and the type of judge they would make I have no problems with them attempting to block such an appointment.

The senate has two roles to play in the process(as I’m sure everyone is aware, but humor me) advise and consent. If either of these breaks down then we’ve got problems and our hypothetical senator of conscience should dig in their heels until the situation is resolved. Never cast a vote(yea or nay) unless you understand the issue clearly and fully. Obviously “consent” deals with yea/nay and/or filibustering. It’s the attempts of the administration to limit the senate’s duty to “advise” that is really the problem here. You can’t advise without info. Nor are senators obligated to take only the information presented by the administration into consideration. They have the option of asking additional questions/seeking other info at their discretion. As the article mentioned, having these questions forestalled throws red flags.

Ultimately you’re right, it’s a game. My response was to december’s implication that the Democrats are playing dirty or being hypocrites. If a theoretical “perfect” senator with a conscience, no partisan biases and the best interests of the American people in mind would do the same thing then how is this behavior something to be villified?

Enjoy,
Steven

minty heh. Having planned two weekends out this month already(Valentine’s and for Grace’s b-day) the wife and I had to prioritize(babysitters for four kids, birthday parties for relatives and various other obligations) and we won’t be attending this weekend. Oh well, we’ll get together sometime

[litost]

That was a good summary of the situation, echoing the views of people before such as Polycarp. Now, I am waiting for december to prove the case that the Democrats are being (a) unusually dirty and/or (b) malicious

(a) => petty/extreme politics
(b) => race-based politics

[Oh, wait, or is the OP claiming that IF the Democrats go ahead with their plan to filibuster, the Republicans can milk (malicious) political mileage out of it?]

[kanicbird]

** Tejota** what the hell is a wing nut?

Well I know what a wing nut is, it’s one of those nuts that are typcailly found holding carbarated engine air filter covers.

And I can assume a stealth wing-nut is what they use to hold the air filter cover on a stealth aircraft.

No really WTF is a wing nut?