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

Great Debates
41

Sorry Gad, but there’s legal ignorance to be fought here.

Correct.

Largely incorrect. The Constitution places no particular limits on federal spending power. The only limits are that they can’t spend money in ways that violate subsequent amendments to the Constitution–e.g., freedom of speech, establishment of religion, equal protection, etc.

Even apart from the direct and substantial connection of all the stuff the school buys via interstate commerce–schoolbooks, cafeteria mystery meat, footballs–you cannot seriously claim that the success or failure of those students’ education will have no impact on interstate commerce. Stupid people means less commerce.

42

If federal controls of schools is justified by “interstate commerce” then is there anything under the sun that isn’t justified by “interstate commerce”? Doesn’t that obviate the whole part of the constitution dealing with states’ rights?

43

In general: no and no. And you may find any number of past threads on the subject by searching on “interstate commerce.” Though I don’t mind correcting misstatements of the law here, further discussion would be way off-topic.

44

Largely incorrect. The Constitution places no particular limits on federal spending power

That’s not how it was viewed for the first 150 years. Congress regularly did not approve even minor spending requests for things like disaster relief because they were deemed unconstitutional. If they did get past Congress, they were often vetoed on Constitutional grounds.

The basic premise here seems to be that the government can do anything not SPECIFICALLY PROHIBITED by the Constitution. This is in direct contradiction to the 9th and 10th amendments, which indicate that the federal government can only use powers specifically GRANTED. All others belong to the states and individuals.

I of course realize that the legal reality is different today. It’s gotten to the point where “no law” means “Well, sometimes, if there’s a compelling interest”. But I think it’s wrong, and I’m glad there are some groups out there lobbying the Supreme Court to actually read the Constitution.

45

I see that this has attracted some strong opposition, so I have to go on record as agreeing with it. It’s not as if the sum total of my opinions about any such topic is determined by these factors. But my initial symphathies, absent any further information, are based on such considerations. And if it is a subject that I am marginally interested in, that might remain my impression.

I also agree with the second quoted sentence. A lot of people - including some who would deride such reasoning as “shallow” or “silly” - undoubtedly use the same sort of thought process. They just won’t admit it.

46

Funny, Izzy…I’m the one who called that statement “silly,” and I’ve gone to great lengths to articulate my thought process regarding the Estrada nomination, criticizing the Democrats several times along the way. Are you suggesting that I “just won’t admit” that the reason I don’t like Estrada is that Bush picked him?

Or are you addressing that to those nebulous other people “who would deride such reasoning as ‘shallow’ or ‘silly’”? If that’s the case, would you care to meet any of my arguments on their merits, since none of those shadowy others are actually, y’know, posting in this thread?

In case I’m not being clear: I think it’s bad form at best, and a subversion of the Senate’s constitutional duty to advise and consent at worst, for either major party to proffer a candidate–any candidate–for an appellate court judgeship if that candidate is unwilling or unable to provide any evidence, oral or written, that he possesses the technical skills necessary to be a judge–such skills including a capacity for sophisticated legal analysis, a consistency and clarity of judicial philosophy, a recognition of the complexity of judicial doctrine, and a proficiency for laying out arguments through speech and writing.

And a history of excellent lawyering does not demonstrate all (or even many) of the foregoing characteristics. The set of legal skills needed to write a brief or argue a case in front of a judge are qualitatively different from those needed to craft a judicial opinion or even write a decent law review article. There are surely those who possess multiple skill sets, but the point is that success in one legal discipline does not necessarily suggest equivalent success in another. Someone can be a singular advocate and a below-average jurist, and vice-versa.

From my paper:

Estrada had no publicly available past legal writings, and he clammed up at his confirmation hearing. He hasn’t demonstrated that he’s got the necessary skills for the appellate bench–again, put him on a lower court and let him work his way up, if you’re so hell-bent on him being a judge–and that’s why I oppose him. I’d feel exactly the same way if a Democratic president nominated a top-flight lawyer with no written record to an appellate court, and the nominee stonewalled during his hearings. Of course, both Democrats and Republicansm have shown in recent years that they can nominate uncontroversial candidates to high courts with little trouble–Kennedy, Ginsburg, Breyer, all of the appellate judges confirmed under Bush II–and so I’m still somewhat baffled why either side would invite trouble by nominating someone who’s as obvious and intentional a cipher as Estrada.

47

Well I’m not asserting that you (or Mtgman) specifically are doing that. But I do observe from multiple debates and positions on these forums and elsewhere that there seems to be this strange divergence in support for Estrada between conservatives and liberals. Despite what seem in many cases to be well thought out positions on both sides, it does seem that people’s positions on these ostensibly non-partisan matters such as those you raise seems to be largely (but not completely) determined by their position on the ideological spectrum. From which I determine that many people (possibly but not necessarily excepting yourself) have some good idea as to Estrada’s likely ideology which gently guides them in adopting their positions. And this good idea would most likely - in the absence of a clear alternative source - be derived by a process such as that described by Shodan.

As for the substance of your argument, I would be interested in whether the criteria you describe to have been accepted as standard criteria for Senate approval prior to the Estrada nomination. If they were, then I agree with you. If they were not, then I don’t.

48

Standard criteria? Soit-anly.

Article II, Section 2:

That’s it. The president can nominate whoever he wants for whatever reason he wants. Senators can vote to confirm or reject the nomination on the basis of anything under the sun–if they wanted, they could vote against a nominee because they literally didn’t like the cut of his jib. Other than that, there’s nothing but custom, precedent, strategy, and good sense that guides nomination or confirmation procedures.

There’s no disputing the constitutional or legal propriety of the President nominating, or the Senate filibustering, a candidate like Estrada. What’s in dispute is whether, normatively, the filibustering senators are being partisan and obstructionist, or whether they have any justification other than “I don’t like that guy’s politics” under which opposition to the nomination may be legitimately professed. What’s in dispute is whether the President should nominate an appellate court candidate whose philosophy and judicial mind are, publicly, a blank slate; what’s in dispute is whether senators who are uncomfortable with such a nominee should block confirmation.

Democrats aren’t overlaying any brand new set of requirements for judicial nominees, if that’s what you’re asking. Objection to nominees on the grounds of ideology, whether perceived or inferred, dates back to Brandeis at least, and (depending on who you ask) perhaps to John Rutledge, a nominee of the Washington administration. By contrast, the stealth strategy–exploiting the informational asymmetry that exists when you think that 1) you know what kind of judge your guy’s gonna be and 2) the other side doesn’t–is, as far as I’m aware, a relatively recent thing. There’s no developed body of etiquette. In fact, part of my argument here is that senators haven’t reacted optimally to the advent of stealth nominations. I’m saying that an objection to stealth candidates on the grounds that they haven’t demonstrated the necessary technical skills for a high judgeship is more valid than an objection on the grounds that you think their politics must be extreme. I’m chiding the Democrats–and the Republicans, if and when they’re in the same situation–for not analyzing the situation the way I do, and for not taking the tack I advocate.

So to answer your question: There’s nothing that says a senator must reject a nominee whom he feels lacks the necessary skills to be a judge, and there’s nothing that says a senator must confirm a nominee about whom he knows nothing other than the accolades of the nominator. My argument is that a senator should be able to oppose a nomination on the grounds that he doesn’t know enough about the technical skills of the nominee; my argument is that a nominee is not presumptively well-qualified to be a judge just because his supporters say he is–given that there’s no Senate rule explicitly laying these things out, are you saying you disagree with me?

49

Well as you note, the Senate can do whatever they want. “Advice and consent” is pretty vague, and in any event, they can advise and consent based on whatever they want. The Senate can support people that they know nothing about and decide to rely on the Prez or just satisfy themselves that he is not a deranged lunatic, or the Senate can insist on knowing the guy’s shoe size. All I’m saying is that to suddenly make up a new set of criteria that conveniently disqualify someone that you have other ideological objections to is wrong. So if in fact the Senate has traditionally not been as reluctant to confirm nominees without legal writings or whatever as they are in this case, I oppose making up these criteria merely to oppose Estrada.

If you are merely saying, as you seem to suggest, that you, Gadarene, disagree with past Senate procedure and think they should have been following your criteria all along, that’s fine, but uninteresting. Even if your criteria are legitimate, ignoring them is also legitimate, as above, and if that’s what they’ve been doing all along that’s what they should do here. So I wouldn’t be debating your theoretical scenario.

Though I should mention that I personally don’t find opposing a judicial nominee out of purely “political” ideological reasons to be as odious as many others seem to, and I don’t see the great need to pretend that the Democrats are doing otherwise.

50

Nice excluded middle there. :slight_smile:

Who’s making up anything, suddenly or otherwise? There exists a certain skillset, which hasn’t changed in a century or more, that is necessary in order to be a good judge (cites available upon request). Why is it “a new set of criteria” to say that senators needn’t confirm someone who doesn’t outwardly possess that skillset, unless or until the nominee can convince them to the contrary?

Well, my point–and if you can find anything contradicting this, it’d be of interest to me for my paper–is that stealth nominations, or the deliberate selection of “nominees without legal writings or whatever,” is a recent development. (There are a slew of reasons why this might be so, beginning with Reagan’s realization in the early 80s that lower court nominations were just as important as Supreme Court nominations when attempting to further a particular judicial philosophy, and encompassing the decline of patronage, the failed Bork nomination, and several other things.) Thomas, Souter, and now Estrada. It’s a great strategy, if and when it works, but it’s probably not within the spirit of the advice and consent clause (not to mention that it probably isn’t particularly efficacious, something I address in my paper). But it’s not a question of the Senate having been reluctant or unreluctant in the past, because present-day nomination strategy is different than it traditionally has been. This is intrinsically neither good or bad, but it’s true. Therefore, your assertion that confirmation norms should remain static is curious to me.

And none of it reaches the question of Estrada making a good judge. This thread was started because someone, off-handedly, called Estrada a judicial candidate “perfectly suited [to the federal court],” whose nomination was undeservedly blocked by partisan Democrats. Later posters have amplified that theme, though none of them have stayed in the thread long enough to defend their position. I’m not attributing their arguments to you, so I don’t know if you believe Estrada was undeservedly blocked or not. But I don’t see what the reasoning of the Democrats in blocking the nomination has to do with why many conservatives assume that Estrada is “perfectly suited” for a D.C. Circuit appellate court seat, this latter question, essentially, being the thrust of the OP.

I find it puzzling that you seem to be advocating that senators confirm judicial nominees about whom they know nothing other than a resume bereft of judicial experience, a nonresponsive confirmation hearing, and the good word of the opposition party.

51

Excluded middle? I gave two extreme examples, so as to say “anything from Point A to Point B”. Unless your subtle sense of humor is whooshing me here. :wink:

I can’t say for sure if anyone is making anything up - I merely asked the question - but if anyone is it would be Senate Democrats.

The skillset of what is necessary to be a good judge is not necessarily synonymous with what needs to be demonstrated in order to win Senate confirmation.

Actually, I was banking on you doing (or having done) the research ;).

Your point about the stealth nominee is something to consider, but for purposes of your point it makes no difference if the nominee’s “qualifications” are unknown because of a deliberate strategy by the President, or if they just happened to be unknown.

Again, what I am saying is that the extent to which the Senate micro-manages their “advice and consent” role, and the scrutiny to which they subject nominees is one that can be done at any random level, with no level being any more valid than any other level. If the role of the Senate has traditionally been more of a hands off role with regards to the kind of issues that you raise, then creating this new role for themselves in the case of Estrada is bogus and just about providing a cover for themselves and clothing their actions in more high-minded-sounding principles.

52

This is pretty much completely ahistorical. While there was early debate over the scope of Congressional spending power, the actual practice was for Congress to spend money on whatever it damn well pleased. See the Findlaw annotations for a brief primer.

The power to spend for the general welfare is SPECIFICALLY GRANTED to Congress.

53

Care to weigh in on Estrada, minty? :slight_smile:

54

What, you think you’re the first guy to discuss his nomination? :slight_smile: Seriously, I think I pretty much covered my p.o.v. in these threads:

Should Democratic Senators Filibuster the Estrada Nomination? (Feb. 2003)

How can Estrada answer Democrats’ questions if they don’t ask? (March 2003)

55

The power to spend for the general welfare is SPECIFICALLY GRANTED to Congress.

This was defined as spending on items authorized by the Constitution, not as a catch-all to do anything.

The idea that the commerce clause and the general welfare clause allow Congress to do anything it pleases is in direct contradiction to the 9th and 10th amendments in the Bill of Rights. Not surprisingly, these amendments are now considered essentially meaningless.

So if you want to know where our liberty went and how we ended up with the Patriot Act, look no further than the beginning of the subversion of the Bill of Rights.