BTW, december, do you know which editorial board position he held? While holding a board position is more presitigious than being a mere staffer, some carry more responsibility than others. The Editor in Chief is the Big Kahuna of a law journal, for example. On my law journal, the chain of command was as follows:
Orrin Hatch described him as, “The editor of the Harvard Law Review.” That sounds like the Big Kahuna, but Estrada’s government biography says “he was an editor of the Harvard Law Review.” I presume that his biography is right, and the Hatch used the wrong article.
The answer is… No.
The filibuster is a patently offensive mechanism most commonly associated with Strom Thurmond and the LOVELY viewpoint he was espousing back in the day.
The tit-for-tat game of holding up judicial appointments, which both sides have engaged in for decades, should simply stop.
Debate Estrada’s qualifications all you want. The fact is this game has been played for years and with multitudes of candidates qualified or not. It’s not a question of Estrada, it’s a question of the two-party hijinx and legislative ridiculousness that passes for governance in the country.
If they stop now, then the Republicans get to pack the courts. Their strategy of maximizing the number of vacancies during the Clinton years would have proved successful.
That would be a far worse outcome then a bit more bad feeling among the various members of the Senate.
I say, Impeach Bush (and Cheney) first, then stop the obstruction of Judicial appointments.
So you’re backing a Dennis Hastert presidency? 
Let’s impeach Hastert too. Then we can President Robert Byrd! :eek:
An editorial in the Florida Times-Union shows the kind of media punishment the Democrats will be in for if they filibuster Estrada. It’s entitled JUDICIARY: Blocking Hispanics
“Hey, wanna buy this pig?”
“But you’ve got it in a bag; I can’t see it.”
“Yeah, but it’s such a nice pig; it was the runt of the litter, and fought its way up to be a big, healthy boar!”
“Well, how much does it weigh?”
“I can’t tell you that; it might change sometime later, and you’d sue me if it wasn’t the same as I told you now.”
“Well, then, what’s its fat/lean ratio?”
“The President classed that information as confidential. But it was a bright little piglet; look at these pictures of how it played when it was little!”
“Well, get it out of the bag and let me see what it looks like now.”
“Sorry, can’t do that.”
“Well, then, I’m not buying it.”
“You son of a bitch – you’re nothing but a traitor, trying to destroy the economy by not buying my pig!”
============
No matter how you package it, december, you’re asking us to buy a pig in a poke. Are you so dense that you cannot see that?
Stooping to invective means one has run out of arguments. 
You are comparing the Estrada nomination to some ideal, rather than the real world. I and the Washington Post assert that the Senate has a normal amount of information about Estrada’s judicial views, comparable to what they know about many other appellate court nominees. Can you refute that?
In fact, the Senate has confirmed Supreme Court justices without knowing their judicial philosophy. E.g., David Souter, Earl Warren, and Abe Fortas come to mind.
And, that seems to have worked most excellently in the past! For example, when kimstu wrote her senator Lincoln Chafee asking him to oppose the Ashcroft nomination, she got a nice letter back from Chafee that said that he also had had reservations about Ashcroft but after meeting with him and getting personal assurances, Chafee was going to support him. And, we all now know how great that has worked out! Personal assurances in private don’t seem to count for much.
Well, I would argue that the problem is not that we don’t know his judicial philosophy. The problem is that we know it all too well from what can be gleaned! However, as long as the knowledge is indirect in this way, it can sort of be denied. “What? He’s no extremist…No. He’s a perfectly moderate fellow.”
If he would state honestly what his philosophy was (or release documents that showed it), then the Senators could vote on the basis of tangible things that he has said. By not allowing them to do this, the Administration is trying to make him a “stealth” candidate…One where everyone pretty much knows where he stands but where he’s got plausible deniability on it.
Pardon me; I will be sure to have you vet my expressions of my views before posting again. I certainly would not want to construct an analogy which would offend your sensibilities!
:wally
The invective wasn’t your analogy, Polycarp; it was the words, “so dense.”
BTW your use of the :wally emoticon didn’t address the point that the Senate has a normal amount of information about Estrada’s judicial philosophy. The Democrats’ bogus claim of lack of knowledge isn’t even a reason to vote against Estrada, let alone a jusitfication for the first filibuster in history of an appellate court nominee. I ask again for you to provide evidence that the Senate possesses less than normal knowledge about Estrada’s judical philosophy.
jshore, since you claim to know Estrada’s philosophy “all too well,” would you be willing to share it? What is Estrada’s judicial philosophy?
ISTM that nobody knows Estrada’s judicial philosophy. What we do know is that he’s a Republican Hispanic – an intolerable combination! :eek:
december: Maybe my statement was a bit strong since our evidence of his views is indeed limited…but what evidence we have points in one direction. Here is a quote from the New York Times editorial opposing his confirmation:
The other thing we know is that, unlike in the case of Souter for example, there is very unequal knowledge of the details of his views, i.e., the Administration gets to read things that the Senate and the rest of us cannot:
My guess is that if the solicitor general memos painted him as a very fair, non-ideologue kind of guy, the White House would have no problems with releasing the memos.
jshore, the trouble is, that Times editorial isn’t really honest. First of all, it doesn’t actually quote “people who have worked with him over the years,” but rather just one person, Paul Bender. Second, I have read that Bender is himself seems to be driven by a liberal agenda. Third, Bender’s criticism has been discredited. When Estrada worked for Bender, Bender gave him only the highest of reviews. The criticism came from a letter he wrote after Estrada was nominated, but it is contradicted by Bender’s reviews.
Since every living ex-Solicitor General said it would be wrong to release these internal memos, your guess seems to be contradicted.
In that case, permit me to withdraw the word “dense” and to apologize for my anger – which in any event should not have been addressed at you. I had just been dealing with two very hostile situations in my staff capacity on the Pizza Parlor, and was in a particularly irritable mood when I read your posts this morning. I should not have carried that irritation over here, and hope you will forgive me. I do, however, have one point, referencing your last response, that touches to the heart of the issue we have been debating:
You have been asked repeatedly for concrete evidence regarding Estrada’s political philosophy, and have brushed this aside with repeated reiterations of what to you seem his admirable qualifications (and I do respect what he has accomplished). Since you’re arguing in favor of the concept that he should be accepted as a Federal appellate court judge, it seems to me that the onus of proof is on you to show why he is a good candidate, not on those arguing against you (including myself) to show why he is not. I presume that if someone waltzed into this thread and alleged that Rush Limbaugh or Dan Savage, or perhaps I might suggest A.B. Swindell would make better candidates than Estrada, you would presumably not begin research to show why they were not, but insist on that someone or me demonstrating why we think they are. I feel the same is incumbent on you.
Polycarp – No doubt Estrada would say that his judicial philosophy would be to follow law, precedent, Supreme Court rulings, and the Constitution. That’s what any nominee would say, so it tells us nothing. But what else is there to say?
Would he vote to overturn Roe v. Wade? Clearly, he would not, since he would follow the Supreme Court. (If he were nominated to the Supreme Court, this would become a relevant question.)
For that matter, what is the meaning of the comment in the nasty New York Times editorial, “driven by an unusually conservative agenda”? First of all, I, like Senator Nelson, believe Estrada would make fair decisions, regardless of his political affiliation. His record has demonstrated compassion for the weak. But, what do they even accusing him of? What do they think a judge driven by a conservative agenda would be likely to do? I don’t know, and they don’t say. I think the words “unusually conservative” are just meant as a smear. It’s the left’s version of Red-baiting.
Maybe I’m missing something, Polycarp. Are there specific questions are about Estrada’s judicial philosophy that you want answered? He said he would make correct rulings, based on proper considerations. What else is there to ask?
No doubt he is in favor of motherhood, apple pie, saluting the flag, and is kind to small dogs and little old ladies, too. Those are, to be sure, reasonable expectations of any judge. But there is quite a bit more to say – how he will “follow law, precedent, Supreme Court rulings, and the Constitution” is what remains to be determined, and about which he seems to have been very much less than forthcoming.
If you don’t mind, I’ll request Sua Sponte, minty green, Bricker, Dewey Cheatem Undhow, or one of the other competent law scholars of the board explain in more detail, but there are a number of philosophies of constitutional jurisprudence, including use of the literal text, the founders’ intent, the reading of “ideal” statements as reflective of the mores of the society (which do change with time), etc. I have very little doubt that Hugo Black, if he were alive, would dissent strongly from a finding that child pornography was legally prohibited, not because he liked child pornography – quite the contrary – but because he was a strict literalist in construction, and the First Amendment says “Congress shall make no law…” A law that restricts absolute freedom of speech or freedom of the press was in his view unconstitutional, no matter how “good” a law it was or how horrendous the behavior it attempts to regulate. Felix Frankfurter and the younger John Marshall Harlan were notable for their advocacy of “judicial self-restraint” – the idea that a legislature presumably knows what it’s doing and absent a clear violation of constitutional principle the court has no business substituting its views for the legislature’s. Both “conservative” and “liberal” justices in political terms have been practitioners of this philosophy and of its reverse (for which I know of no non-pejorative name). Earlier I gave the example of Justice O’Connor’s deference to stare decisis – her respect for that principle is, in a nutshell, why abortions are legal in this country today. His stances on these philosophical bases for judging are questions that Mr. Estrada can legitimately answer without violating the rubric against pre-judging cases.
Oh, and by the way: Appellate judges decide cases on the basis of constitutional principles on a regular basis. The only circumstances in which Roe v. Wade is absolutely binding is if the precise same set of circumstances again arose. The basic concept, that abortion is a right protected by the Constitution, is one that a Circuit judge would be expected to honor – but whether a (hypothetical) South Dakota law that requires that the doctor performing the abortion make out a statutorily-prescribed form regarding the termination of the life of the unborn child and publish it in the legal notices of a paper of general circulation in the county where the abortion was performed unduly trammells the rights of the pregnant woman and the doctor is a quite distinct question, and one that needs to be decided on the basis of Roe, Webster, and Casey (and presumably other cases with which I’m not familiar).
And, as I think is obvious but which may not have come to the forefront of your thinking, as an appellate judge he will be expected to rule on constitutional issues before they come to the SCOTUS – that’s a key part of his job. Since SCOTUS handles about one case per year under original jurisdiction, the majority of their work comes from appeals granted certiorari – and these are, IIRC, about 50:50 from Federal Circuit Courts and State supreme Courts (lower case S because it is not the case that the “supreme court” is the highest court in all states – in New York, for example, it’s the court of first instance for major lawsuits and the first level of appeal for criminal and minor civil cases, with the Court of Appeals as the “supreme” court of the state).
The decisions on which SCOTUS rules are to affirm or overturn the decisions of courts immediately under them on constitutional grounds; those courts are expected to make accurate rulings bound by SCOTUS precedent but making precedent themselves in the absence of binding SCOTUS precedent. To give you an outstanding example, suppose J’Noel Gardiner, the transsexual widow who was in the news, is involved in a Federal case where her sex is significant, say she’s owner and CEO of a company seeking WBE status in a Federal contract. We have definitive rulings that in Wisconsin, she is a woman, and in Kansas she is a man. What does the Federal government regard her as? Happens SCOTUS has declined to rule on this question – and it’s appealed up to your court. How do you decide? Why? Does the Constitution give you guidelines? Which parts? Why are they controlling? Better answer right, or Mr. Justice Scalia will vent his sarcasm on you. This is what Mr. Estrada will be facing, and the American people, liberal and conservative, Republican, Democrat, Libertarian, and independent, male and female, black and white, Anglo and Hispanic, deserve to know what his philosophy, underlying the way in which he makes his decisions, is.
To buttress some of what Poly is saying: while it is true that an appellate judge always writes with one eye peeled towards the possibility of being overturned by SCOTUS, there is plenty of wiggle room for an appellate judge to “distinguish” those SCOTUS cases not to his liking. Given that – and given the fact that most cases aren’t granted cert by SCOTUS – a federal appellate judge has considerable power to shape the course of the constitutional river.
Having said that, my personal belief is that shaping the judiciary is one of the prerogatives of the presidency – the Senate should be checking for competence and making sure the candidate isn’t a total nutbar in his views, but should otherwise give the executive wide berth in selecting judicial candidates (and yeah, that applies to many of Clinton’s nominees, too). I think to do otherwise leads to – well, it leads to the general nastiness that is judicial appointments in the post-Bork era. Which in part leads to a general lack of confidence in government in general.
But YMMV.
Yes, I understand. Is this a question which candidates normally are expected to answer? Or, is it a special requirement that only applies to conservative Hispanics?
There’s a big difference between judicial philosophy and political philosophy. Even if we knew a judge’s Constitutional approach, we still wouldn’t know how he would rule on various political issues. That’s what people really care about. Can you imagine a filibuster justified on the basis that a judge tended toward the use of original intent? Sounds goofy.
Do you know whether these the type of questions that Estrada ducked? I know he refused to say how he would rule on Roe v. Wade. I do not know that he refused to discuss his approach to “original intent.”
Your description of various SC Justices’ constitutional tendency is interesting. However, I wonder whether these judges’ tendencies were known before they started making rulings Even at the SC level, I’d guess that these tendencies mostly appeared after the fact. In other words, their constitutional philosophy didn’t need to be explained in advance in order to obtain Senate approval.
To answer the OP question–yes, they should, and if they’re smart, they will.
December may be right that we have confirmed judges about whom we knew less than we know about Estrada. That, however, is irrelevant; the fact that we’ve done it that way before doesn’t mean we have to do it that way now. Were the previous Congresses simply maintaining the status quo when they blocked Clinton’s appointments?
Most of those who opposed Bush in the last election (and now) feared his effect on the judiciary more than anything. (Bush has openly declared that he wants more justices like Scalia on the SC.) If the Dems want to still be around in a few years (and their recent activity makes that a hard thing to assume), they’ll respond to that concern in their base and keep it from happening. If that means filibustering every single judge who can’t or won’t demonstrate that he isn’t a right-wing nutjob, then so be it.