And with respect in return, Gadarene, I did not answer the question because it is, in my opinion, irrelevant to the Estrada nomination.
The Democrats who fillibustered the nomination are not motivated by a high-minded desire to see the best possible judges on the bench. They want liberals.
When Democrats say, “Estrada hasn’t published enough to tell if he is a good legal scholar”, what they mean is that he has not come out publicly in favor of Roe v. Wade, and a few other of the hot button issues for Democrats.
The notion that Democrats would support a conservative judge on the fast track for the Supreme Court, in today’s partisan climate, even if he were a first-class legal mind, is IMO almost ludicrous.
I think the idea that Democrats are worried about Estrada’s legal abilities rather than his political ideas is naive.
Which is not to say that Republicans haven’t done the same thing. But I am not prepared to make believe that motives are other than they are when Democrats do it as well.
9 Republicans, all of whom range from extreme skepticism of abortion rights to outright hostility. Justice Owen was merely more hostile than most, though not near as hostile as Justice Hecht.
Go read the opinions, which were released in the Spring of 2000. http://www.supreme.courts.state.tx.us Because you have not read the opinions, you obviously have no idea whatsoever what you’re talking about. The constitutionality of abortion wasn’t even an issue in any of those cases, which dealt solely with the legal standards that a pregnant minor had to meet under the statute to obtain judicial approval for an abortion and the standard of review for appellate courts reviewing the judge’s determination.
Listen up, amigo. The Texas Supreme Court did not invalidate any law enacted by the Texas Legislature in the parental notification cases, and it did not “enact” any new laws in those cases. None. Whatsoever. The Court–for which I have the highest respect, by the way–simply interpreted the statute to determine the legal standards that applicants had to meet in order to obtain judicial approval for an abortion.
By the way, do you have any idea how the Texas Supreme Court is selected? No? Statewide elections. Kinda does away with your claim about “appointed” judges, doesn’t it?
“The Democrats who filibustered the nomination”? All of them? Cite?
Also, is there a difference in your mind between “we want liberals” and “we don’t want conservatives”?
What about “we want liberals” and “we don’t want really extreme conservatives (such extremism defined by us, of course!)”?
What about “we want liberals” and “we don’t want this guy, because he must be really conservative if no one’s telling us anything about him”?
Do you know for sure which of the above three motivates each of the filibustering Democrats?
And what about all the other appellate nominees that the Democrats didn’t filibuster?
But Democrats, by and large, didn’t say “Estrada hasn’t published enough to tell if he is a good legal scholar.” I’m saying that. What the Democrats say, based only on presumption and inference, is “Estrada’s an extreme conservative that Bush is trying to push through while hiding his extremist politics.” As I’ve mentioned, I think that’s kinda silly of them. I think “Estrada hasn’t demonstrated that he possesses the technical skills needed to be a judge” is much more accurate and meaningful.
You know that Kennedy never came out in favor of Roe v. Wade, right? How in the world did the Senate confirm him 97-0, if the Democrats are the way you say they are? Hypnotism?
There’s a difference between “support” and “not oppose.” As Senator Biden said about David Souter, “He is not a man whom I would nominate to the Court–but he is not a man whose nomination I will oppose.”
I’m primarily talking about my views in this thread, not the Democrats’. I would certainly not oppose the nomination of a “first-class legal mind,” conservative, liberal, or points in between–unless, as I said, I sincerely feel that they are so blinded by ideology or idiosyncratic jurisprudence as to be unable to see the shades of gray omnipresent in the law. For example, I think it would be great to see Judge Posner on the Supreme Court, and he is, in many respects, as conservative as they come. Were Posner to be nominated, I would likely disagree with any Democrats that opposed him.
I’ll ask you a question I asked whuckfistle earlier: What makes Estrada so special that he deserves to be on the fast track to the Supreme Court, especially without having demonstrated the technical skill needed to be a judge at any level? Aren’t there a ton of experienced, conservative judges out there who have already earned a shot at advancing from within the ranks? Why does Estrada get to bypass all of them? Or rather, why does it matter so much that it’s Estrada, about whose consistency of philosophy and capacity for judicial reason we know almost nothing, who gets to be on this fast track? Why can’t (some) Republicans accept that it’s bad form to nominate a blank slate to a high judgeship, and pick someone else? If the Democrats filibuster every person that gets nominated, I’ll agree that they’re being unreasonably obstructive–but that’s clearly not the case. Why is Estrada so particularly deserving? Or is it just the principle of the thing, that the President should be able to nominate who he wants and have them come to a vote?
I’ve never said they were; I’m speaking for myself here. Although I must say again that I don’t think the Democrats are reacting to Estrada’s political beliefs, because they don’t know for certain what those beliefs are. Rather, they’re reacting (I think) to their perception that Estrada’s political beliefs and judicial philosophy must be extreme, else why would he be so tight-lipped and unresponsive about them? As I say in my paper, Senate Democrats are left to wonder to themselves what Estrada’s views are…and the grotesqueries of their imagination might well outstrip reality.
But there’s a simple solution for that, isn’t there? If the Democrats say your guy is an extremist, let him explain to them the many ways in which they’re wrong. Legally, saying “my views are irrelevant to the job I will do” may be copacetic; politically, it’s a risky move (especially when you’ve offered no overriding technical judicial prowess on which senators might hang their hat).
And again, how do you explain all the appellate nominees under Bush that the Senate has confirmed, if the issue is the Democrats not wanting conservatives on the bench? What, again, makes Miguel Estrada so special?
What activism? I can only assume that you mean in Bush v. Gore. If so, explain why that should be considered activism, and if your explanation is “Because Bush won” I don’t see any need to watse either your time or mine any further.
Whoops…um, my fault. By “this century” I meant “last century.” Specifically, the period from around 1900 to the mid-1930s. And actually, it wasn’t just the Four Horsemen–Van Devanter, McReynolds, Sutherland, and Butler–who were conservative activists. There’s a long line of cases–including Lochner (1905), Adkins (1923), and Schechter (1935), where conservative judges were more than happy to overturn the will of a legislature because they found it incompatible with their personal constitutional vision (mostly centering around liberty of contract and the public-private distinction, and achieved through the formalistic means I mentioned earlier).
That’s what I meant. Not Bush v. Gore. Sorry for the confusion.
Gadarene, heh, I was also confused about the ‘century’ comment. Guess we still haven’t gotten used to it, eh?
The answer to your Four Horsemen comment, I believe some conservatives, like Scalia, would definetly be completely opposed to it, because they don’t believe in substantive due process, which they believe is a judicially created doctrine which is no where in the text. Other conservatives would probably say there are substantive due process rights for personal life, why not economic life and agree with the Four Horsemen. Others might not give a damn ;).
This century, last century, what’s the difference?
I agree for the most part with your analysis, ISiddiqui, but I was directing my comment at those conservatives who say that the courts should stay out of the process of legislation. As I think the Llewellyn quote demonstrates, to do so is impossible; some measure of interpretation of the law is always necessary (and sometimes judges will absolutely need to contravene the letter of the law in order to avoid absurd results). And saying that judicial entry into the legislative arena is solely the province of Democrats is not only unsupported by settled canons of construction but by history.
Any of y’all–whuckfistle, Shodan, Age, etc.–care to come back and take another whack at the Estrada pinata?
Why should they smack the pinata when they can argue against the certainly speculative and almost certainly fictitious motives of the Democratic party?
Below is another fine specimen of conservative paranoia:
I disagree. This contention rests on the assumption that judicial conservatism and political conservatism are directly related. Even the most cursory examination of today’s most activist “archconservative” judge, Antonin Scalia, reveals that this assumption is at best simplistic and at worst outright false.
With respect to criminal procedure, Scalia’s opinions are hardly conservative. He wrote the court’s opinion declaring that the use of heat sensors to locate indoor marijuana growth is unconstitutional. His decisions on important freedom of speech cases are remarkably liberal: he upholds flag burning as speech protected by the first amendment, and has written several opinions protecting freedom of speech against state laws. These rulings have not pleased his “conservative” backers.
There is nothing inherently conservative about constructionism, or “originism,” as I believe he calls it. We can test this using Scalia’s four years of DC Court of Appeals rulings (1982-86). We can see exactly where Scalia’s decisions place him on the liberal/conservative political spectrum. I bet that just about everyone but Gadarene would find the results quite surprising.
In order to see where Estrada’s judicial opinions lie, we would perform precisely the same test. We overlay his years of acculumated judicial decisions on the usual political continuum.
Again, I think this is either disingenous or naive.
Bork tried this. They weren’t listening to anything he said. Have you ever read a transcript of Ted Kennedy during those hearings? It made no difference whatever what Bork said - Kennedy simply proceeded to the next question/accusation of extremism on his list without regard to what Bork had said.
You are assuming that the partisans who blocked Estrada are open to persuasion. They might be, but that persuasion would have to take the form of a public commitment not to overturn Roe v. Wade. They aren’t going to be satisfied with anything less. Any other response, in the absence of some other evidence that the nominee is willing to uphold the litmus-test of abortion rights, is going to get the nominee blocked by any means, fair or foul.
If they think they can get away with it. They could, and they did. And they will do it again.
For the record, no, I don’t think the Dems cared about Estrada’s ethnicity. Except that they are angling to get the Hispanics in America (currently the largest ethnic minority in America) to vote Democratic, and are especially eager not to let Bush score points with them by appointing a Hispanic to the Supreme Court. Which is basically why Clarence Thomas was subjected to the lies of Anita Hill, abetted by Sen. Simon and Nina Totenberg. The Dems don’t want minorities on the Court unless the minorities agree to be the liberals’ house n****rs.
How do I know Estrada would be a good judge? I determine that pretty much the same as most everyone else involved did. If Bush picked him, and the Democrats are as scared of him as they showed themselves to be, he sounds like a good candidate to me.
This is quite possibly the most shallow evidentiary standard I’ve ever heard of. Akin to picking a wife based upon nothing more than reports of her bust size. I suspect such blind trust may eventually have repercussions.
How, then, would you explain that Al Gonzalez–current White House Counsel, former Justice of the Texas Supreme Court, and close friend of GWB–is universally expected to cruise to confirmation if and when he gets nominated to the Supreme Court?
I have a simple explanation for that: Gonzalez is not an arch-conservative, as his voting record and opinions amply demonstrate.
(He’s also underwhelming as a judge, in my experience and opinion, but that’s a matter for another day.)
Yes. Bork was, in my considered opinion, an extremist. Reasonable minds may differ, and none of Bork’s views were of the complete nutball variety, but his positions on Griswold and the Ninth Amendment, among others, lead me to believe that he would not have appropriately apprehended the manifold complexities of judicial doctrine. Would you be sanguine with someone who states that Johnson v. McIntosh was a horrible decision and that he believes it should be judicial policy to attempt to cede as much public land back to the Native Americans as possible?
I’m not, necessarily. I’m assuming that not everyone is a partisan. (Schumer and Kennedy certainly are.) And I’m assuming that greater transparency regarding the judicial philosophy and thought processes of Miguel Estrada would expose those partisans for what they are. Right now I stand with the partisans, not because I’m partisan, but because Estrada’s a tabula rasa. Were he to stop stonewalling every attempt to plumb his depths (the guy professed not to know what “strict constructionism” meant, for Chrissake) and instead answered questions in a manner that displayed legal acumen and an analytical mind, I’d oppose efforts to block his nomination (as, with apologies to minty, I think I do with Priscilla Owen).
If Bush seized the high ground here and actually stuck to nominating people whose views, temperance, and intellect were out in the open, there’d be virtually no public support for Democratic obstructionism. As it is, it looks like he’s hiding something, especially with regard to Estrada. People (and senators) don’t like feeling as if the wool’s being pulled over their eyes.
I mean, look–do you really think the Democrats would oppose William Pryor to the extent that they do if he hadn’t said that the Roe decision “has led to the slaughter of millions of innocent unborn children”? If you do, check out Michael McConnell. He opposed abortion, said so without being needlessly antagonistic, and was confirmed by the Senate. Even Schumer was okay with him: “[h]e came before this committee, openly discussed his views, . . . [and] was candid with us about his beliefs. He engaged in honest discussion with us about his viewpoints. And he showed himself to be more of an iconoclast than an ideologue.”
Again, like Anthony Kennedy? Like all the other appellate court judges that the Senate has confirmed since Bush took office? I’m not sure why you keep skating past these points (and, come to think of it, most of the rest of the questions I’ve directed your way).
Let me put it another way: even in these highly charged, partisan times, judicial nominations that meet with opposition are the exception, not the rule. For every Bork, there’s a Kennedy. For every Pryor, there’s a Michael McConnell. For every Estrada, there are five Reena Raggis or Jeffrey Suttons.
You really don’t want to go there, do you?
(By the way, I personally opposed Thomas’s nomination because—surprise–I don’t think he was sufficiently qualified. I think he should have started off at a lower court than the D.C. Circuit Court of Appeals, and I think his eighteen months on the D.C. Circuit were far too few for him to be nominated to the Supreme Court. Wanna take a guess how many significant opinions Thomas had authored on that court at the time of his Supreme Court nomination?)
I’m very appreciative of your ability to discuss the issue rationally and without resorting to broad-brush generalizations. Your assertions are so persuasive that I’m not even going to ask you to back them up with actual evidence.
No offense, because I generally really respect you, but this may be one of the single silliest things I’ve ever read. Wow.
I seem to recall that the Constitution gives the Senate the right to “advise and consent” regarding the nomination of judges by the President. Bemoaning the loss of bygone days where the Senate supposedly rubber-stamped judicial nominations out of respect for the White House equates to a lack of recognition of this constitutional duty.
*…the President has the right to choose judicial nominees on the basis of ideology. His electoral mandate surely includes a mandate to appoint likeminded judges. But the Senate equally has the right to veto nominees based on ideology too. And the President defeats that Senatorial prerogative when, as in the case of Estrada, he attempts to jam the Senate’s ideological radar by offering a blank public record.
It’s not just that he’s chosen a nominee who hasn’t taken public stands previously. That is perfectly fine. It’s that Presidential advisers are doubtless counseling Estrada to avoid taking any such stands in the confirmation process, either. The result is that insiders know all too well what Estrada probably thinks, but the public has little clue – not exactly an attractive situation in a democracy."*
Next time the Bush (or any other) Administration wants a high profile nominee confirmed to a federal judgeship, it should embrace candor - and take its lumps according to democratic (not necessarily Democratic) principles.
By the way, while I find Gadarene’s arguments generally well-stated, I’m surprised this comment sneaked by unscathed:
*"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.*"
While I am pro-abortion rights (and think a judicial nominee’s position on Roe v. Wade is very important), it seems obvious to me that someone holding the anti-Roe v. Wade opinion noted above is in the mainstream. In the minority, yes, but in the mainstream of American thought. By contrast, anyone in 2003 America who states that Communism was fine but never got a fair chance would have to be viewed as an extremist, not to mention a joke.
So pairing those opinions is, at the least, making an invidious comparison.
Yeah, that’s a good point, and further underscores the unique position of abortion in American politics.
How 'bout “believes that public education is unconstitutional” (I know several conservatives who genuinely do) vs. “believes that Communism was a decent idea in theory”?
Of course, the fact remains that Democrats do consider that kind of characterization of Roe as indicative of extremism (at least if it’s couched in the terms Pryor used, although I recognize, as you say, that many Americans use those same terms). And Republicans may consider similarly mainstream-ish ideas as objectionable if expressed by a judicial nominee–is a belief that hiring quotas are sometimes necessary in order to further eventual racial equality a decent counterpoint?
So “public education is bad” vs. “Communism is good,” and “language about killing innocent babies” vs. “language about the necessity of racial quotas.” Are those comparisons more fair?
To comment on the federal education thingie, I don’t think you’ll find anyone that says that public education is unconstitutional. A FEDERAL role in education could be considered unconstitutional. The states can establish public education if they want to.
So the feds, who have unquestioned power to tax and spend, can’t spend money on education? And education doesn’t have anything to do with interstate commerce?
Allow me to introduce you to the 20th Century. It was a golden age, in which Federalism ruled supreme and Clintons bestrode the Earth.
(For the record, and to the extent that I recall, at least one of the people that I’ve met–damned if I can remember his name, he’s a conservative libertarian who filed an amicus in the Grutter case–does indeed believe that all publicly-funded education is unconstitutional. But probably there aren’t many people who share that view.)
Now back to Estrada. And thanks, Jack, for catching that inapposite comparison.
