Since I am sorely lacking in background, this has been a thread where I cannot understand the debate. In my self-interest, can I ask two specific questions?
What questions are generally asked during the “advice and consent” process? In other words, what information about the candidate does the committee deem essential for it to weed out poorly qualified and/or extremist individuals?
How did the candidate, Estrada, perform w.r.t (1)?
A perusal of the cites provided in this thread is really “he said, she said”. Based on these cites, the biggest objection to the candidate as raised by the Democrats is that there is not enough information (as per (1)) to arrive at a positive or negative judgement on his candidature. I also got the impression that the candidate’s brilliance as a lawyer is not pertinent to the appointment. (It would be nice if december can explain why he thinks that is a sufficient condition)
The Republicans of course argue that he is brilliant, an accomplished lawyer, and is competent to hold the post.
Personally, I can come to a conclusion on this issue only if someone can answer (1) and (2). I also feel that those answers will clarify this debate for all of us.
Here’s an interesting and fair summary of the current situation from the Washington Post
litost, I don’t know the answer to your questions, historically. I do know that in recent years some hearings have become “gotcha” session – an organized effort to discredit the nominee on one side, with an organized effort to defend her/him on the other.
We have seen Senators spend full their allotted time lecturing the nominee, rather than ask any questions. I vividly recall Sen. Kennedy, who was kicked out of Harvard for cheating, giving moral guidance to Judge Bork. IIRC that was prior to Chappaquiddick. We have seen Senators cut off the nominee in mid-answer. We have seen Senators misrepresent legal rulings as if they represented the judge’s political positions. Positions taken in favor of a client have been misrepresented as if they were judge’s personal ppositions.
I hope there might be some lawyers around who can address litost’s question.
Of course, the Democratic Party, which has for many years made it a point to champion minority rights, is suddenly out to become racist. And would never think of asking anyone else what tools he brings to the table to perform the job for which he is nominated. :rolleyes: I am thinking a pun on the phrase “snide innuendo” with reference to this paragraph, but so far successfuly resisting the urge to make the comment.
In all seriousness, december, it would be my impression that many nominees in the past have been well-known for their philosophical stances on how to read the law – Frankfurter had written extensively and built a major reputation as the country’s foremost constitutional scholar, including his views on “judicial self-restraint,” before FDR nominated him. If you’ll recall the Bork contretemps, many of his writings on constitutional jurisprudence were brought out in opposition to his nomination, and rightfully so from the perspective of those bringing them out – if you, december, would oppose a constitutional literalist like Black, you have every right to bring up his stance as shown in his published work as grounds to oppose him.
I trust you are now able to see the distinction between “how would you rule in this case?” – which is justly refused to answer by any nominee – and “what is your view on judicial self-restraint?” – which any nominee should answer frankly and fully if asked. Like everyone else here, I’m not aware of whether such questions were asked – but if they were not asked, that reflects poorly on the Senate Judiciary Committee membership, Democrat and Republican, and if they were asked and not answered, that reflects poorly on Estrada.
Hey – I get to agree with you on one thing in the middle of this! I detest this, whether it’s Scalia on the bench, a Senator in a hearing, a reporter at a press conference, or anyone else in any other context – we’re expecting to hear the positions of the person agreeing to answer questions on whatever the issue he’s supposed to be answering them on, not a lengthy disquisition on the opinions of the questioner!
As has been pointed out to you already, december, one major reason for Democratic opposition to Estrada’s candidacy is a perception, true or false, that Estrada is being pushed as a “stealth” candidate – a person whose views are not brought out and who seems to be refusing to allow them to be brought out. If he would flat-out say, “I agree with Justice Scalia’s jurisprudence” or “I tend to take a stance similar to Justice Kennedy’s views” or something of the sort, I’d withdraw 95% of what I’ve said here.
In particular, the idea that Estrada’s experience arguing before SCOTUS is relevant is founded in part on what you refute here – as counsel for the Justice Department, he was honorbound to support the stance of the Administration on the issue before the court, no matter what his personal views on it were. Counsel for Colorado Governor Roy Romer, who was the appellant in a recent historic case, were representing the State of Colorado and hence defending the actions of the state in adopting a state constitutional amendment that flew in the face of the guarantees of the Fourteenth Amendment to the U.S. Constitution. That neither they (as I understand) nor Romer (as he made publicly clear) were personally in support of that amendment was by the boards – they were acting in the capacity of retained counsel for the state in defending its actions against a constitutional challenge.
I’m frankly less than thrilled about the idea of a filibuster regarding Estrada’s nomination – but, whether true or not, the idea that the Republican Party seems intent on pushing into a public office a man whose political and jurisprudential views can only be inferred from a few memberships in organizations. Of his competence as a lawyer you’ve furnished much detail – but there are questions of his competence and style as a judge that remain unanswered – and I personally feel that it’s quite unreasonable for anyone to expect support of someone while questions of that sort remain unanswered.
This has been a feature of judicial nominations since the Bork hearings. Bork even describes the questioning (and the Constitutional illiteracy of the Senate) in the latter part of The Tempting of America.
Needless to say, Robert Bork is not Hispanic. Why you continue to play the race card is beyond me. It’s ugly when the Democrats do it, and it’s ugly here. You should be above that.
I can imagine a filibuster on one Robert Bork on precisely those grounds. I suspect that Ted Kennedy, after delivering his “Robert Bork’s America” tirade, would have little choice but to filibuster if it had looked like Bork’s nomination would pass – he’d have to put his money where his mouth was (“what, Sen, Kennedy, you seriously think Mr. Bork wants to resegregate America but didn’t think filibustering was appropriate?”).
The Bork nomination changed the process dramatically, and not for the better. But I don’t think you can unring that bell.**
Many nominees have backgrounds in legal academia. Thus, they have a body of published work from which to glean their philosophy. This is why, for example, that Laurence Tribe will never be nominated to SCOTUS in spite of being widely recognized as the nation’s leading authority on Constitutional Law – his law review articles stake out some pretty liberal interpretative positions.
I find it laughable that several Republicans (and december, of course) are trying to play the race card. This is pathetic political manuvering - something both parties are guilty of - but in this case it just reeks of hypocrisy. Instead of focusing on the real issues - whether this man has revealed enough of his basic beliefs and ideals - they are trying to villify the Dems in a most ridiculous way.
The hypocrisy - that Richard Paez, the last major Hispanic Federal judge nomination, was held up for FOUR YEARS by the Republicans - is not a justification for the current situation. I am simply trying to point out that you (december) and the Republicans don’t have a leg to stand on when you accuse Dems of using race as a factor.
Argue the issues - and do so as passionately as you like (or feel). But please, do not make spurious arguments simply to villify your opposition. This is a nasty tactic - the attempt to “bring down” an opponent so that you may put forth your own views unopposed, instead of simply debating the issues - and IMO one that most often backfires. Eventually, people will see through that shit.
But hey, if december wants to continue to make the Republican party look bad, he should feel free. (Course, if I were a Republican, I would tell him to keep his yap shut before he convinces everyone around here to join the Dems.)
It’s noteworthy that some panelists here simply believe the accusation that Estrada is a “stealth candidate.” Yet, none of us have any evidence that the acccusation is true. In fact, we’re just guessing at what it is supposed to mean. What questions did Estrada improperly refuse to answer? Nobody here knows. That’s why the Democratic Washington Post called this point “circular logic.” Yet, some of you continue to repeat the accusation like ditto-heads.
I fully agree with **Polycarp ** and DCU that many nominees’ judicial philosophies are well-known, particularly those with backgrounds in legal academia, who typically have a body of published work. I presume we also agree that many or most nominees have not had known judicial philosphies. Yet, they were confirmed. AFAIK there is not a single example in history of an appellate court nominee who was rejected because his judicial philosophy was unknown. The Democrats erected a brand-new hurdle for Estrada.
leander, I fully agree with you that it was wrong of the Republicans to delay the nomination of some Clinton appointees for years. I think that the Republican criticism in the case of Estrada is totally valid, and so is the Democrats’ criticism of similar Republican behavior. One wrong doesn’t cancel out another. Both parties have damaged the public interest.
The Hispanic issue was brought into this controversy by Estrada’s opponents. Representatives from the Congressional Hispanic Caucus, the Mexican American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund said the Estrada nomination should be killed because Estrada is simply not authentically Hispanic. (Presumably an “authentic Hispanic” would be a Democrat. There is no other respect in which Estrada is not an authentic Hispanic.)
I believe Sen. Ted Kennedy implicitly raised the Hispanic issue when he said, “We can’t repeat the mistake we made with Clarence Thomas.” By using this comparison, Kennedy seems to have meant that Estrada, a Hispanic conservative, needed to be opposed more effectively that was Thomas, a black conservative.
I don’t think the notion that the Democrats are biased against Estrada because he is a Hispanic is to be taken seriously (assuming anyone is actually suggesting such a thing). OTOH, it is just possible that the Democrats would prefer to have conservative white judges over conservative Hispanics for the exact same reason the Republicans prefer the latter - because it makes it easier to portray conservatives as being racists. Having a bunch of prominent conservatives of Black or Hispanic background makes it easier for conservatives to sell the argument that conserative principles are not racist or bad for minorities in the long term.
Whether this factor actually figures into the Democratic mindset is something I don’t know.
As to how it plays out, I doubt if the Democrats will suffer any Hispanic backlash. At the same time, having nominated the guy helps insulate Bush against charges that he has not nominated enough Hispanics. So it’s a winner for Bush, either way.
As noted earlier, I doubt if the Democrats will suffer politically from a fillibuster. But I do think it is a tactic that cannot be used every day. If I was Bush and the Dems succesfully fillibustered the nomination, I would immediately follow up with a string of nominations that are equally conservative or more so. I think if the Democrats effectively closed down the government over a fillibuster of every single Bush nominee, it would indeed backfire.
Godammit, this is just silly. December, if you take as given that a candidate’s judicial philosophy is important in confirming that candidate, then a lack of information about that philosophy is a valid reason to refrain from confirming the candidate. To draw an analogy: say a law firm is looking to hire a lawyer. It considers going to a prestigious law school to be an important hiring qualification. Under your analysis, the law firm would be OK with refusing to hire a candidate who discloses that he graduated from a non-prestigious law school, but would be “erecting a brand-new hurdle” if it declined to hire a candidate that just flatly refused to disclose what law school he went to in the first place.
My God, if information X is vitally important in making a confirmation decision, and you can’t get information X, then by definition you lack enough information to make a confirmation decision. Your dichotomy simply doesn’t make any damned sense.
And don’t start with that “never in the history of nominations” crap. First of all, any reasonable observer will note that the nomination scheme has changed dramatically post-Bork; since that time, judicial philosophy has been a ground for inquiry. Second, if you take as given that judicial philosophy is kosher as a factor, the past shouldn’t matter – it’s a sunk cost. Christ, december, you sound like those people who seriously believe that our actions in the Middle East in the 1980s ought to preclude us from taking further action today. It’s a stupid argument in that context and it’s a stupid argument here as well.
It really pisses me off is that, in spite of this post, I actually support the nominee, on the grounds that within “nutbar” limits, a candidates’s philosophy ought not be much of a factor in the confirmation process. It’s tough enough to be conservative in a generally-liberal forum; it’s even worse when other conservative stake out positions that show blatant logical flaws.
I have to concede a couple of points to december. There has been a little bad faith on the part of the Democrats to oppose a man who appears to be a strong conservative and about whom not a whole lot is known.
Why I’m opposed to his confirmation is that there has been no evidence advanced that would suggest that he would make a good judge. After all, that’s what we’re looking to do here, as a nation. Why would he be a better candidate than, say, Dewey Cheatem Undhow or Bricker?
Judges should have their jurisprudential philosophy examined, either by answering questions or by having it available in the form of published work that the confirming body can examine at its leisture. That it has not been done in some cases is a fault with those cases, not justification for continuing to do so.
I personally do not care whether Estrada is a political conservative, a Hispanic (“authentic” or not), or a Lesbian nun with green skin – I care about whether he will bring to the job the qualities I expect in a federal judge. And I have not seen evidence that convinces me of that. I have repeatedly made the request that such evidence be produced if it is public knowledge of the man most enthusiastic about his candidacy in this thread, and been given bafflegab in place of evidence.
If the gentlemen on the Senate Judiciary Committee indeed have such evidence, they have not been forthcoming about it. If they failed to question what his philosophy is, shame on them – Democrat and Republican alike. If he refused to answer generalized questions not committing him to prejudge issues, shame on him. And in the absence of such evidence, I will continue to contend that he should not be confirmed, for reasons already given.
In words of one syllable, december, why would this man be a good judge who will administer the law fairly? Not what did he do in school, what is his ethnic background, what is his political stance, or any other positive or negative credential, or any comments about how “dittoheads” are demeaning him or any bullcrap about political attitudes interfering, but one clear and simple question – why would he be a good judge? Convince me that he will do the job. I’ve already given you examples of political conservatives that I respect as excellent judges; show me why he might be one of them. Simple as that; give me the goods and I’ll argue on your side, for once!
What else can one conclude about a man who will talk about his true views in private, but only to members of one party?
The issue is whether or not he should be given a lifetime seat on a high court. He hasn’t shown that he should, nor have his cheerleaders. But then, you’ve always had difficulty with the concept of “burden of proof”, haven’t you?
One you’re ducking, I might add. If Estrada deserves a nomination and confirmation, doesn’t White? Why aren’t you as strongly in favor of that? Don’t answer if you don’t want to; we all have a strong suspicion.
Bullshit. From the moment he was nominated, Estrada was sold by the White House and its supporters in the Senate as a Hispanic nominee.
Your beloved National Review, for instance, lists his VERY FIRST “OUTSTANDING QUALIFICATION” as “Honduras Native.” That’s from this page of VRWC propaganda links:
[quote]
Estrada Has Outstanding Credentials:[ul][li]Estrada: Honduras Native, Harvard Law Grad, Clerked For the U.S. Supreme Court.[/ul][/li][/quote]
And looky here, it’s Dubya himself, addressing the U.S. Hispanic Chamber of Commerce and telling them how happy he is to have nominated the first Hispanic ever to the D.C. Circuit Court of Appeals. Yep, there’s the president hisself, promoting:
“Mike.” Yep, they must be real close friends, huh?
I would agree that someone who refuses to discuss his judicial philosophy should not be confirmed. But someone who refuses to answer “how does your judicial philosophy apply to Roe vs. Wade?” should be. I posed the question earlier as to which was being concealed, and got no response. But I am inclined to assume the latter, and this was also the claim of Senator Hatch, as quoted earlier. I haven’t seen anything to contradict this, and unless someone can make the claim, I think all this talk about lack of information is missing the mark.
I disagree. The Senate and the public have every right to know how a nominee’s judicial philosophy applies to matters of great importance to the nation. You choose abortion, of course, as have many Democrats. But are we also not entitled to know how Estrada’s philosophy applies to Brown v. Board of Education, the use of race in creating voting districts, the power of the federal government to regulate matters traditionally left to state and local governments, etc.? I certainly think we are. And that applies to nominees of either party.
Sheesh, can you imagine if a nominee for Secretary of Defense refused to state his position on SDI and peacekeeping operations?
I detest this, whether it’s Scalia on the bench, a Senator in a hearing, a reporter at a press conference, or anyone else in any other context – we’re expecting to hear the positions of the person agreeing to answer questions on whatever the issue he’s supposed to be answering them on, not a lengthy disquisition on the opinions of the questioner!