Would Miguel Estrada make a good judge? How do you know?

Great Debates
1

On another thread, whuckfistle posted the following:

Having written a paper on Miguel Estrada specifically and stealth nominations generally, I thought this deserved a thread of its own. So here we are:

whuckfistle, you seem (from later posts in that thread) to be including Miguel Estrada in your list of people who are “perfectly suited and come highly recommended,” yet who are (or were) being blocked from confirmation. Is it fair of me to characterize you as believing that Estrada was “perfectly suited” for a judgeship on the D.C. Circuit Court of Appeals?

If so, let me ask you: how do you know? What specifically in Estrada’s record makes you think that he was cut out for the second-highest court in the land? Is it because he was a high-powered lawyer? Because he came “highly recommended”? Because he described his judicial philosophy as (paraphrasing here; I’ll quote him directly when I have access to my paper) following precedent and interpreting rather than making the law?

I submit that not all good lawyers are good judges, that there are juristic qualities that can’t be imputed just because someone has served in the Solicitor General’s Office or argued before the Supreme Court. Estrada had no public writings to his credit whatsoever, nothing that told us how he thought, never mind what he thought. There was no indication as to his thoughtfulness, his capacity to reason, his writing skill, his consistency of philosophy, or any of the other decidedly non-ideological things that make someone excel as a judge.

For this reason, I think it’s silly for the Democrats to filibuster him because they think he’s too conservative–there’s no evidence that his views are anywhere out of the mainstream, for the simple reason that we don’t know what his views are. And while it may not matter what his views are, that he chooses to be silent about them means that we have no idea how well he writes, or how well he reasons, or how well he thinks–things that would be manifested by his expression of his views, whatever those views might be.

So I think that his nomination should have been held up until he could give some substantive reasons why he should be placed on the second-most powerful court. Granted, past judicial experience is no prerequisite to sitting on the bench, but my position is that nominees at the federal appellate level should have some clear public record of their ability to write and reason, whether that record comes in the form of law review articles, lower court opinions, or whatever. If they don’t have such a record, then what’s the problem with starting them off at a lower court and letting them develop one?

I’m just profoundly uncomfortable with the Senate confirming people to lifetime appointments to extremely powerful positions without knowing how well-suited they are to do the job, ideology aside.

Thoughts?

2

Yes, that was very well written and thoughtful. I will admit that I cant debate with you at the level that this topic deserves. I just dont know enough about the topic as you seem to (I know,- your point exactly).

I will give it a shot though…

The following are support quotes from various people;

**Ronald Klain, who was Vice President Gore’s chief of staff and has known Mr. Estrada since Harvard ***
Said Mr. Estrada would be able to “faithfully follow the law.” The Washington Post, 5/23/01. *

**Seth Waxman, Solicitor General under President Clinton ***
“[t]hey are both exceptionally well-qualified appellate advocates.” (speaking about both Mr. Estrada and John Roberts) The Washington Post, 5/23/01. *

**Clint Bolick, Institute for Justice ***
Mr. Estrada is an American success story. He came over at age 15 from Honduras not speaking English, and he is one of the most distinguished young lawyers in America today. He was an assistant solicitor general and made 15 arguments before the United States Supreme Court. He’s got a stellar winning record. National Public Radio, May 9, 2001 - All Things Considered. *

**Mario Rodriguez, Hispanic Business Roundtable President and CEO of Jonathan Grey & Associates Inc in San Clemente, CA ***
“Miguel A. Estrada brings to the court a distinguished legal record based on his many years of work in the public and private sector. Mr. Estrada also brings a unique perspective and human experience understood only by those who have migrated to a foreign land as a teenager not knowing the language. It is for this cultural depth and his unique legal qualifications that HBR urges the Senate Judiciary Committee and all members of the U.S. Senate to put partisan politics aside so that Hispanics are no longer denied representation in one of the most prestigious courts in the land.” HBR Press Release, U.S. Newswire, May 9, 2001. *
Short Bio.

Resume.

*"Sources close to Estrada said that he and his family had tired of the nomination battle, and that he asked the White House to withdraw his nomination several weeks ago, but Bush officials didn’t want to give up the fight for his nomination so soon. In a letter published in the Sept. 4 edition of the Wall Street Journal, however, Estrada said he was withdrawing to return his “full attention to the practice of law” and “to regain the ability to make long-term plans” for his family.

In a statement released from the White House, Bush said the nominee “received disgraceful treatment at the hands of 45 United States Senators during the more than two years his nomination was pending.”

Bush added that Estrada was defeated “despite his superb qualifications and the wide bipartisan support for his nomination.” He concluded: “The treatment of this fine man is an unfortunate chapter in the Senate’s history.” "*

The above from here.

To be fair here is a quote from the same above link;

*"Estrada has never been a judge. Senators who opposed his nomination said his lack of a judicial record – and his refusal during confirmation hearings to answer questions about his views on important legal issues – made it difficult to determine his views on controversial issues. He came under higher scrutiny than many circuit-court nominees because many legal experts predicted Bush was grooming Estrada to become the first Hispanic on the U.S. Supreme Court.

The White House also refused to release confidential memos that Estrada wrote on important legal issues while he worked for the office of the U.S. Solicitor General. Republicans – and some Democrats – protested that such a release would compromise the legal principle of executive privilege.

But predictions by some of Estrada’s supporters about how he would rule on certain issues suggest his opponents’ suspicions may be justified. Making reference to a recent federal appeals court ruling that declared a Ten Commandments display in an Alabama courthouse an unconstitutional government endorsement of religion, Southern Baptist leader Richard Land said Estrada would have opposed such rulings from the federal bench." *
I think we both know that the main reason that Estrada was hassled by the Dems is because they dont want a minority conservative in the higher courts. Takes away some of their agenda points now doesnt it?

By the way, the title of that article is "Bush withdraws Estrada nomination after uproar over his conservatism
". – Seems about right to me.

I hope others join in. This topic could use some fire.

3

Another fine article about Estrada.
*“They did not oppose Estrada because he was Hispanic. They opposed him because he was President Bush’s Hispanic,” Gray said.

But Sen. Charles Schumer, D-N.Y., a strong critic of the nomination, said, "We feel we have no regrets about what we've done." 

Republicans tried six times to win the 60 votes needed to advance to a final vote on confirmation of Estrada, but Democrats blocked them each time. 

In Estrada's case, Democrats said they would not allow a final vote until the Justice Department released internal memos he had written while serving in the office of the solicitor general in the administration of Bush's father. 

Several former solicitors general sided with the administration, Republicans and Democrats alike saying the material was confidential internal working documents. 

Both sides had aired TV ads promoting or denouncing Estrada. Karen Hughes, a former top White House aide to Bush and now an outside adviser, helped raise money for the pro-Estrada group. 

Bush argued that senators were applying a double standard to Estrada by requiring him to answer questions that other judicial nominees had not been forced to answer. 

For instance, the Democrats pressed Estrada to make clear his views on abortion rights, but he refused. Past controversial nominees have similarly deflected questions on abortion and capital punishment. 

They also said Estrada lacks the judicial experience to serve on that court. Republicans accused Democrats of treating Estrada unfairly because he is a conservative Hispanic."*

The first statement in this quote is the blunt truth.

4

One more;

*Today is a shameful moment in the history of this great institution," said Senate Majority Leader Bill Frist, R-Tenn., in a speech on the Senate floor. “The United States Senate has been denied the right to confirm or reject a brilliant and qualified nominee because of the obstruction of a few.”

For Estrada - who at one point was rumored to be a possible Supreme Court nominee - the withdrawal ends a two-year waiting game in which his nomination for the U.S. Circuit Court of Appeals for the District of Columbia never got beyond the Senate floor."*

From here.

In this case the actions of a few did in fact take this mans appointment away from him. One which he richly deserved no matter how you look at it.

Ok, I`m done for a while. Chew on that and get back to this later.

5

Thanks, I appreciate you time gathering the links. I’ve read most of 'em, since I’m interested in the topic, and I don’t necessarily think (as you appear to) that they settle the issue anywhere near conclusively.

First, let me repost one of the paragraphs from my OP. I’m interested in your take on it:

“I submit that not all good lawyers are good judges, that there are juristic qualities that can’t be imputed just because someone has served in the Solicitor General’s Office or argued before the Supreme Court. Estrada had no public writings to his credit whatsoever, nothing that told us how he thought, never mind what he thought. There was no indication as to his thoughtfulness, his capacity to reason, his writing skill, his consistency of philosophy, or any of the other decidedly non-ideological things that make someone excel as a judge.”

Let’s say you’re a Senator–doesn’t matter what party–and you want to be assured that the next D.C. Circuit Court of Appeals confirmee is actually likely to be a good judge. What qualities do you look for?

One thing you might look for is someone who’s not ideologically “extreme,” however you define extremism. For the Democrats, that means you might oppose someone who characterizes Roe as facilitating the murder of millions of innocent babies. For the Republicans, that means you might oppose someone who’s written a book saying that Communism was a good idea that never really got a fair shot. (And if you don’t think Republicans would oppose such a judicial nominee, I’d be interested in hearing your reasoning.)

Now it may be that ideology, no matter how extreme, shouldn’t matter when deciding to nominate/confirm a judge. That’s a decent argument, but it’s neither here nor there in this case, because let’s say that the nominee you’re assessing has absolutely no publicly stated political, ideological, jurisprudential, or philosophical views whatsoever. Better yet, whenever he’s asked about his philosophy on judging, he simply says, “I think the law is a good thing.”

Okay, so ideology’s out of the picture. Either assume that the nominee’s sufficiently moderate, or assume that ideology doesn’t matter–either way, he’s given you no cues as to his personal beliefs. So what other qualities do you look for?

At this point, you might tell me, “Why, nothing else–he says the law is a good thing, and I’ve got no reason to disbelieve him. That’s all I need to know.” If so, fine…this discussion is constructively over.

Personally, though, I’d like to know a little bit more. Not necessarily about what the nominee thinks about issues, but (as I said earlier) about how he thinks about issues. I hope you’ll agree that not everyone can walk off the street and do well as a judge. It takes a certain frame of mind, a certain skill in understanding the merits of competing arguments, deciding between them, and laying out your reasoning for your decision in a clear and persuasive manner that both respects precedent and lays the groundwork for similar cases in the future. In my opinion, not every lawyer possesses this skill. Do you disagree? If so, then, again, the conversation is probably at an end.

If not, tell me: how are you, as a Senator, to know whether a nominee possesses this skill (or whatever others you deem necessary for a judge) if the nominee has no written record and will tell you nothing about how he reasons and thinks about the law other than, “I think it’s a good thing”?

Are you willing to put your confidence, every time, in the president who nominated him? If confirmed, the nominee is basically on that court for life, wielding tremendous power over the day-to-day workings of the government and the lives of countless people. What if he, well, sucks? What if he’s not that good at being a judge, and it’s something you could have foreseen had you read his papers or listened to him explicate his philosophy or seen the opinions he’d written as a lower court judge? Would you be okay with deferring to the judgment of the executive like that? And if so, what does that do to advice and consent and the separation of powers? (Okay, that’s a question for a different thread.)

So do you agree with what I’ve said in the paragraph I’ve reposted? And if not, why not?

More to follow. :slight_smile:

6

Sorry to be tedious, but that’s obviously not true; a lot of people look at it and see something else. That’s the whole point of the thread.

Trinopus

7

Some quote-and-respond here; forgive me for being brief, as I’ve got a class to run to:

  1. Do you think the Democrats would have given him less of a hard time if his name had been Michael Jones? How would their strategy in opposition to his nomination have changed? Do you have a cite or two to instances where they played the Hispanic card regarding Estrada?

  2. How do you know Estrada is a conservative? Seriously. :slight_smile: How do the Democrats know that he is?

  3. Is the fact that the Democrats have confirmed twenty-odd other Bush nominees to federal appellate courts due to those nominees not being minority, or not being conservative?

That first statement being: “They did not oppose Estrada because he was Hispanic. They opposed him because he was President Bush’s Hispanic.”

What’s your evidence that his ethnicity came into play at all?

But you’re begging the question. Why did he richly deserve it? Does every top-flight corporate lawyer deserve a federal appellate judgeship if he wants one? Every Assistant Solicitor General? Every Supreme Court advocate, or Supreme Court clerk? No? What makes Estrada special, that he deserves it without demonstrating why he’d make a good judge?

8

For what it is worth, C. Boyden Gray is the exact same guy who “discovered” a young bureaucrat named Clarence Thomas and delivered him up to Bush #1 as a possible Supreme Court nominee. (Did he refer to Thomas as “our Black”?)

Anyway, I wouldn’t trust that guy’s opinion on what makes a good judge as far as I could throw him across the Potomac. I think most legal scholars would agree that Thomas’ resume was a little slim to start out with, and that he turned out to be basically the conservatives’ rubber stamp serving out his lifetime bid on the Supreme Court.

9

I see and understand your point.
“I submit that not all good lawyers are good judges, that there are juristic qualities that can’t be imputed just because someone has served in the Solicitor General’s Office or argued before the Supreme Court. Estrada had no public writings to his credit whatsoever, nothing that told us how he thought, never mind what he thought. There was no indication as to his thoughtfulness, his capacity to reason, his writing skill, his consistency of philosophy, or any of the other decidedly non-ideological things that make someone excel as a judge.”

Im not sure I can respond to that. Why dont we know his reasoning capacity?, his writing skills?, his thoughtfulness? – because we dont really know the man. I have never met him, and I doubt if you have either. Im sure those that saw him work have been impressed. Those that know the man and how he lives his life can attest to his character.
I havent watched him work - but Im sure that those that support him have. Im not in his house, his church, his business,-- Im not in his community. I`m sure his supprters have been in his home, his church, his business, his community.

OOH!, stop the presses.
Here is a link that you`ll like.
I finally found something that was marginally negative towards Estrada.
The author has shed some info that MAY make me tone down my support of him.

Another interesting link .

More later.

10

I’ve never in my life met Laurence Tribe, or Richard Posner, or Cass Sunstein. Were any of these men–or any number of other people with a publicly available body of written work–nominated to an appellate court (or, in the case of Posner, the Supreme Court), I could tell you a great deal about their reasoning capacity, their writing skills, and their thoughtfulness.

Also, what has character to do with judicial skill?

11

Interesting theory. Are you predicting that the Democrats will also planning to filibuster the nominations of Clause Allen and Allyson Duncan, both black Republican nominees to the 4th Circuit? How about Carlos Bea, who got nominated to the 9th Circuit?

How did Edward Prado overcome the immense bigotry of the Democratic party and manage to get confirmed to the 5th Circuit earlier this year, less than three months after his nomination? Did Consuelo Callahan have to “pass” herself as something other than Mexican-American to get confirmed to the 9th Circuit earlier this year?

12

An interesting question to pose, but one which is irrelevant to the Estrada case.

Democrats in the Senate define “being a good judge” as “being a liberal judge”, or more probably, “being a judge who will not overturn Roe v. Wade”. Thus they will attempt to block the nomination of anyone they feel might consider overturning it.

If the nominee has published a lot, and is generally agreed to possess a first-class legal brain, (see Bork, Robert), they attack the nominee based on what he has published. If the nominee has not published a lot, they attack the nominee for not giving them any ammunition.

Estrada was considered on the fast track to the Supreme Court, and so blocking him was a priority.

Regards,
Shodan

13

With respect, Shodan, you haven’t answered any of my questions.

How do you know Estrada would make a good judge? On what basis do you come to that conclusion?

14

Oh, I forgot:

See Scalia, Antonin, confirmed by a 98-0 Senate vote. His many blistering opinions on the D.C. Circuit had, I believe, been published at the time of his nomination.

See also Kennedy, Anthony, confirmed by a 97-0 Senate vote. He also had a lengthy record of written opinions.

Both conservative (one more so than the other), both possessed of first-class judicial brains, both confirmed overwhelmingly.

Now, you have a point–one side will generally try to keep the other side from achieving political successes based on one pretext or another. If it isn’t “we know too little,” it’s “we know too much.” However, the more information we have about a nominee’s intellectual credentials, the better-insulated that nominee is from concerted opposition in the Senate. Those nominees whose views are so eyebrow-raising that the more we know about them, the worse we (if we are on the opposite political side) feel about them are few and far between. Bork was one such, in my opinion. Laurence Tribe is probably one such in your opinion.

And maybe the lesson there is that judicial nominees should come from the middlish part of the jurisprudential spectrum, neither too liberal nor too conservative. Who’s which? Well, that’s for the Senate to figure out…but they’ve got to have the basic tools with which to determine the candidates judicial skills in the first place, otherwise ideology doesn’t enter into it at all.

My algorithm’s something like this: 1) Do I think they’d make a good judge? Do I think they’re capable of thinking, reasoning, and writing like a judge? If so, 2) are they so ideologically or jurisprudentially extreme as to be unable to respect the complexity and nuance of the law? If not, I’ve got no problem with their being judges.

As a result of my thinking this, by the way, I’m opposed to the Democrats’ filibuster of Priscilla Owen. From what I’ve seen, she’s okay per the first step of that analysis, and there’s nothing about her past opinions (as far as I know) that tells me she’d have difficulty with the second. Bill Pryor, on the other hand, I’m more conflicted about.

15

Well I think Scalia could not be confirmed in today’s environment.

In those more genteel days, a President was allowed to have his choices and they would not be voted against unless it was an extreme case.

Times have changed obviously. The Democrats will not allow even a vote on a whole slew of candidates. One, Priscilla Owen, because she didn’t see parental notification laws as unconstitutional and was willing to defer to the legislature.

I think the Democrats have elevated a majority consent to a super majority 60 vote consent. I think that’s a very bad idea and one that will haunt them badly if a Democrat wins. If I were a Republican I would automatically filibuster every Democrat judge up to and including the Supreme Court.

“How do you know he (and all the other filibusters) would be a good judge”?. How do you know he won’t be? What makes his case so extreme that it is not allowed even a vote? This is unprecedented, isn’t it?

The other thing about the whole process is that Republicans basically say they want legislation made in the legislature and the courts to not interject themselves into the debate. So if a Republican judge or lawyer has a history of judicial restraint, ie, respect for the law, I think the Democrats have little to complain about.

Basically the Democrats are complaining that the judge won’t legislate the liberal way from the bench. Priscilla Owen defered to the Texas legislature. This is what liberals don’t want. They want to get their laws enacted and know they can’t do it via elections. So they want a judiciary that overrules the legislature every time they personally disagree with something, even though there is no basis in law for their disagreement. People in Texas want parental notification laws, well the liberal judges will set them straight! “Damn you illiterate hics, we’re going to do it my way!” And presto, they find that parental notification violates the Constitution.

16

A couple of things, Gadarene. I’m a little baffled by the idea that this was a “stealth” nomination. You keep asserting that the Senators had no way of knowing what kind of judge he’d be, or whether he had adequate writing skills, or whether he was capable of thinking cogently. However, you appear to be ignoring a couple of things.

For one, the Judiciary Committee was given the opportunity to question Estrada during his hearings. Many Democrats apparently felt they didn’t get enough time, or that Estrada responded to too many questions by asserting that he couldn’t comment on cases that could come before his Court. The Bush Admin. responded by saying that those opposing nomination could learn more about him in at least 3 ways [pdf file]: 1) meet with Estrada personally (I believe only two Senators chose to meet with him); 2) pose written questions to Estrada; and 3) speak with any number of people for whom Estrada worked while with the US government (the letter includes a list of suggestions).

Which brings me to my overriding point: you seem to think that the best source for information on whether a person would make a good judge are law review or other scholarly articles authored by the nominee. I strongly disagree. I think the best source of information on that person is through talking to that person’s peers. And we have an abundance of peer review information on Estrada. In fact, people from both sides of the aisle appeared to think Estrada would make a capable judge.

So, no, we don’t have scholarly articles, and I’ve never spoken to the man myself. But it’s simply inaccurate to characterize Estrada’s nomination as “stealth.” In fact, the Senators had a wealth of information about the man, and avenues by which they could have discovered even more.

17

“Law review or other scholarly articles?” No. Lower court opinions are the best way of assessing, y’know, how well someone does at being a judge. Law review articles are one of a number of things that might be a pale second-best, far better than evasion and disingenuity at a committee hearing and in written follow-ups. (You want amusement, check out Estrada’s answers re: the doctrine of “fair constructionism.”)

Oh, and: “adequate”? “cogent”? Not remotely the words I used. In my opinion, we should look for more from our D.C. Circuit Court of Appeals judges.

What, by the way, was the “wealth of information” the Judiciary Committee possessed about Estrada?

I strongly disagree with this.

And this. (The information asymmetry present in this nomination–Bush knew loads more about his nominee’s personal beliefs, philosophies, and skills than the Senate did–makes it a paradigmatic example of a stealth nomination.) Looks like we can agree to strongly disagree.

18

Quite clearly, you have not read any of the Texas Supreme Court’s parental notification opinions. It also seems wuite likely that you don’t know a darned thing about the political composition of the Texas Supreme Court.

Such a shame.

19

I don’t know how the political composition of the Texas Supreme Court is relevent, which is precisely my point. It’s not. They don’t make laws.

Why don’t you write of the Texas Supreme Court’s parental notification instead of being a smug and condenscending jackass? Since they don’t write the laws, how is that relevent anyway? They didn’t see an enshrined right in the US constitution that invalidates the Texas legislature’s law requiring 14 year old girls to get their parents permission. Well? So what? I don’t remember seeing it there either, now that I think about it.

If you don’t like the Texas legislature, why don’t you campaign in Texas against them? Then the law would be repealed the way it’s supposed to be, through legislatures, which are elected, not appointed.

20

An interesting thing to me–following on bri1600bv’s statement that the law should be changed by legislatures, not judges–is that so many people still seem to think that the law is something that can be mechanically discerned and applied by judges, that there’s one objectively right outcome in every case. (Not necessarily saying you believe this, bri, so feel free to correct me if you don’t.)

Folks, it’s a tricky process. It’s not a matter of a judge saying, “Well, this is what the legislature said” or “This is what’s in the Constitution”–not in the hard cases, anyway. (And if it makes it to the D.C. Circuit Court of Appeals or the Supreme Court, it’s probably a hard case.) Formalism in this regard is deservedly dead. To quote Karl Llewellyn:

All of which is to say that we should take care to confirm (or to do our best to confirm) candidates who possess a certain rarefied skillset not found in every lawyer or every law professor, because it isn’t near as simple as doing what Miguel Estrada tells us is his judicial philosophy: “I will follow binding case law in every case, [and I will] be committed to judging as a process that is intended to give us the right answer, not to a result.”

Well and good, but what happens when the “right answer” is not immediately clear? What intellectual tools will Estrada use to divine it, or choose among competing alternatives? What will he do when there is room for judgment regarding which precedent is binding and which is not, or how much weight to give the plain text of a statute relative to legislative intent? I’m not suggesting that I think Estrada would be hamstrung or befuddled when put into the inevitable position of line-drawing and distinguishing between shades of gray, but per his testimony, his written responses, and his record, the Senate had no inkling how he might draw lines or make distinctions when deciding whether or not to confirm him.

He’s not a stealth nominee? Pah.

One more thing:

bri1600bv:

Really? Can I take it from that that you and all other Republicans “basically” are completely opposed to the conservative activism of the Four Horsemen in the first part of this century?