Should Democratic Senators Filibuster the Estrada Nomination?

Great Debates
101

December and Izzy, I completely agree that there is a bit more “playing politics” here than ought to be – in which I seem to agree completely with Dewey.

Now, let me present Minty Green and Jodi, two competent lawyers who have graduated from law schools, may or may not have worked on their schools’ law reviews, practiced law successfully, and acted as counsels for their states before major courts. Neither, so far as I know, happens to be Hispanic – but we do seem to be in agreement that ethnicity is not a significant factor.

In what way, if you know any, is Miguel Estrada a better candidate for the job than either of these two distinguished Dopers? Because GWB and the National Review like him?

You have not furnished one bit of evidence, in response to repeated requests for it. As advocate for his competence, the burden of proof is on you. I am not compelled to give you evidence here why Elian Gonzalez’ uncle or Marshall Mathers are not good candidates for federal judgeships; if you feel he is well qualified, then dig around and come up with reasons why. Or admit that you’re playing a partisan game with justice in America, and deserve our contempt for doing so.

There may be partisanship galore in the United States Senate; I’m looking for reasons why I ought to support our President’s nomination. I’ve asked you for them, and you have so far reverted to pointing fingers at “them partisan Democrats.”

So let me ask once again – Why is Miguel Gonzales qualified to sit on a United States Circuit Court? Why would he make a good judge?

102

Ah, erm, that should be Miguel Estrada!

:o

103

Well, I don’t see it necessarily as a direct contradiction. If anything, it shows how fair-minded Bender has been regarding Estrada…i.e., he disagreed strongly with Estrada’s views but he didn’t let that get in the way of his reviews of Estrada’s job performance. Note that Bender was evaluating Estrada’s performance for the job he was in at the time, not his suitability for a judgeship. Those are two different things. (That being said, I must admit that I would be curious to hear Bender explain this distinction…i.e., why he thinks Estrada did well in the job in the soliciter generals office but is not well-suited for a judgeship.)

104

I thought I had answered this question twice, but clearly my answers didn’t satisfy you. I will answer it one more time. But, then it’s your turn to explain why my list of qualifications is insufficient.

There is good reason to believe that Miguel Estrada would make a good judge, because:[ul][]The ABA gave him unanimous top ratings.[]His Phi Beta Kappa from Columbia University and magna cum laude from Harvard Law School show him to be very intelligent and academically effective.[]His selection as an editor of Harvard Law Review shows the respect his colleagues had for him.[]He had prestigious clerkships on the U.S. Court of Appeals for the Second Circuit and the Supreme Court.[]He was an outstanding employee in the Solicitor General’s office.[]The fact that he was chosen to argue 15 cases before the SC shows that his superiors condered him to be an extrememly good lawyer.[]He has outstanding recommendations from both conservatives and liberals.[]According to UCLA Law Professor Eugene Volokh, he heartily impressed most of his colleagues at Gibson, Dunn & Crutcher, one of the top laws firms in the country. [/ul]Polycarp, this is essentially the answer I gave last time. In what way does this list not indicate that he is well-qualified for as position on an appellate Court?

105

minty, it would seem that you believe that the Senate confirmation hearing are an oppportunity for the Senate to essentially dictate future legal rulings. I would think their role should be smaller. We may have to leave it here.

Polycarp, I see my name attached to the front of your recent post, but the rest of your post has no connection to anything I’ve posted. Perhaps you meant only the first sentence.

106

Yes, and I apologize for it. I’d intended to address your points in an earlier post in more detail, and neglected to do so.

107

Yes, yes, yes, kinda, and no. :smiley:

I realize that you’re being a bit hyperbolic by using the word “dictate,” and I certainly wouldn’t go that far myself. But I believe that the Senate and the public may legitimately ask what a nominee’s views are on particular issues, and that the nominee may legitimately be voted in or out based on his or her answers or refusals to answer.

Dude, I live in a state where every single non-federal judge is voted on in partisan elections. If, say, the honorable A___ A____ is a lazy, incompetent, back-slapping imbecile who doesn’t even bother to read the fucking briefs before a summary judgment motion scheduled more than three months in advance in a $15 million case, I get to vote against the twit in the next election. Federal judges, on the other hand, are there for life. As a citizen, I have a pretty serious interest in knowing what that person’s beliefs are and how they are likely to impact the nation, because that is the only chance I will ever have to have even the slightest say on whether that person will wield virtually unlimited legal power. You have that right too, by the way. Ain’t democracy great?

108

minty, I said “essentially dictate”, which is what I believe would happen as a practical matter under your system. Although it would only be the high-profile issues that would be dictated, generally.

I don’t know if the senate approval is the only way that democracy is felt - the president is also elected (despite whatever quibbles some have with the most recent election :D). The question is whether “advice and consent of the Senate” includes this much detailed vetting of future legal rulings. I guess we differ here.

109

Quite so, Izzy. I simply prefer it when both the legislative branch and the executive branch have substantive say over who will populate the judicial branch. By the design of a lot of really smart people, it takes both branches to populate the third.

Note that I apply that principle equally to Democratic presidents. Clinton paid back his far-left supporters by nominating a fair number of serious lefties, particularly at the district court level. The Senate was right to shoot down many of them, though I prefer the assassinations to take place on the floor rather than committee back rooms.

110

Fact is that it’s not the end of the world either way. Being a conservative myself, I would like to see the courts packed with as many conservatives as possible. But as for the general principle of who gets more say - I could live with it either way. What gets me in cases like this is that it seems - as december has pointed out - to be an upping of the ante, in terms of the historical role of the Senate. So while I don’t have any theoretical objections to the Senate’s new power, it does seem in this particular case like something of a power grab by the Democrats. This is on top of the earlier round of ante-upping in the case of Bork (as noted by DCU).

Still, in a larger sense, it is likely that although the Democrats have led the way, the growing focus on judicial philosophy should properly be viewed as a broader legislative reaction to the increased power of the increasingly activist judiciary of the last half century or so. As the courts have taken an increasingly powerful role in deciding key political issues, the stakes have gotten higher in terms of judicial philosophy. So the Senate (& president) have paid more attention to such matters. In essence the executive and judicial branches are taking a large degree of control of now-crucial judicial decisions, by controlling who gets to make these decisions.

I imagine the overall effect will be a more mainstream judiciary, and less judicial activism in either direction. Not a bad thing.

111

I strongly disagree. During the Clinton years, the Republican-led Senate blocked a large number of judicial nominees by simply never giving them a committee vote. On the whole, I prefer the filibuster as a more honest means of obstructing an objectionable nominee.

Quite so. I have a political interest in not seeing the gains of the last half century reversed on all manner of issues–segregation, discrimination, reproductive rights, voting rights, etc. But I have no laundry list of items to be added to that list. I’m happy to have conservative judges on the bench, as long as they are willing to respect those precedents and read them so narrowly as to reverse them sub silentio. If the nominees won’t provide specific assurances of that, the heck with 'em.

112

" . . . and not read them so narrowly as to reverse them sub silentio."

113

The American Bar Association’s Judicial Commission on Separation of Powers and Judicial Independence studied the confirmation process and produced a report that had this to say about the Senate’s proper role in the confirmation process:

I found this in an article, but do not know the context. It appears that the American Bar Assn. disagrees with minty’s position.

114

December, thanks for repeating again what must be an annoyance to you, in that by your understanding I’m saying that the criteria which seem to you to be high qualifications are not what I’m looking for.

But they’re not.

They tell me that the man is a very capable and outstanding lawyer, and I’d be more than happy to state that in any forum you wish me to. What I’m looking for is whether he has an understanding of the Constitution as the supreme law of the land, how he reads it in the context of a case before him – not in specifics, which he is honorbound not to give, but in the general principles I outlined in posts above, in short, his jurisprudential philosophy. And so far as I can tell, the only possible evidence we have of that would be in internal Justice Department memos that he and Bush and Ashcroft refuse to make public. And in the absence of such evidence, you have not proven to me that he’d be a good judge.

Izzy, I completely understand the point you made in your last post, and I think there’s a lot to be said for it. But, while I myself am a political liberal, I can and do respect the views of justices like John Marshall Harlan II and Sandra Day O’Connor who are described as conservative. Because their understanding of how judges are supposed to read the law is one that I can feel comfortable with.

If you’ll recall the 1920-37 period, we had conservative judicial activism, where the Four Horsemen and several cohorts read into the Constitution their own political philosophy. The Warren and in large part the Burger Court periods had liberal judicial activism, where the same thing happened but with a liberal political philosophy read into the Constitution. Will Mr. Estrada, like Mr. Sutherland and IMHO Mr. Scalia, do this? Or will he, like Messrs. Frankfurter, Kennedy, and Harlan and Ms. O’Connor, understand the Constitution to set guidelines beyond which government may not go and assume that the President and Congress, the governors and state legislatures, are operating within those guidelines unless there is clear evidence they have crossed them? Will he read the Constitution literally; will he read it with an eye to what the FF intended in a given passage; or will he read it as a statement of general principles whose applications have changed over the years? These are questions that deserve answering, IMHO.

And in the absence of Mr. Estrada being forthcoming about how he would answer them, in general rather than as applied to specific cases, I don’t think he deserves Senate consent, no matter how competent a lawyer he may be.

115

Good lord, december is using the ABA in an argument from authority? Repent ye of your sins, friends, for the Apocalypse is nigh!

116

It is also true that the Democrats returned the favor during the first two years of the Bush presidency. How did it work during the Reagan and Bush I years?

Polycarp,

Other than the fact that I happen to be on the opposite side of the fence in terms of judicial philosophy (meaning I would go for original intent) I don’t disagree with anything in your latest post.

117

True enough. My point was simply that the Senate has had actively obstructed judicial confirmations for some time now, so in that sense, the threatened filibuster is not anything particularly new.

118

Yes, some of those points indicate an outstanding lawyer, rather than an outstanding judge. However, consider that[ul][li]Having an outstanding understanding of the law is a big prerequisite for being an outstanding judge; granted it’s not the only one.[]The ABA gave him a unanimous top rating as a prospective judge. By comparison, recall that the ABA downgraded Bork for alleged weaknesses as a judge[]His selection by the Solicitor General’s office to present 15 cases to the Supreme Court shows their judgment that he had a excellent understanding of the court’s role. []He won 2/3 of those cases; the SC victories indicate that he had a proper understanding of how the court works. []His representation of the SG at the SCOTUS occurred when he was a part of the Clinton Administration. Evidently the people who worked directly with him did see a problematic conservative bias.[/ul]The internal memos are a red herring. It would improper to release them, according to every living former Solicitor General, Democrats and Republicans alike.[/li]
The US is the “client” of the Solicitor General. Releasing conficential SG work papers would be like a private lawyer releasing confidential client work-papers. Even if those papers didn’t hurt the client involved, the inability to guarantee confidentiality would impair the lawyer’s ability to serve future clients. The past Solicitor General’s do not want the work papers released because to do so would impair the ability of the Solicitor General to serve the US.

119

OK, but I think a fillibuster is a more extreme measure. You disagree, as mentioned.

BTW, it appears increasingly that Estrada has merely refused to comment on specific cases, as opposed to judicial philosophy. From CNN

And this

120

I have to agree on the work-papers issue. A lawyer’s duty of confidentiality does not go away just because he’s been nominated to the federal bench. If the duty survives the death of the client, it sure as hell survives that.

You could seek a waiver, I suppose, but who would be authorized to give it? You represent the government, not the administration currently in power. Any lawyers out there who have represented government entities want to chime in here? I’m genuinely curious.