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A defense of the Estrada filibuster

Estrada has some excellent qualifications. He graduated with honors from what many believe is the best law school in the country, Harvard. He served as a clerk to a Supreme Court Justice. And, as an attorney in the Solicitor General's office, he argued many cases before the Supreme Court.

Yet several advocacy groups - such as the Mexican American Legal Defense and Education Fund (MALDEF) and the Puerto Rican Legal Defense and Education Fund (PRLDEF) - that generally support Latino nominees, have nevertheless opposed the confirmation of the Honduran-born Estrada. They have expressed deep reservations about whether he would be a fair and impartial judge.

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Under the Constitution, the Senate has the duty to provide "advice and consent" with respect to federal judicial nominees, and to ensure that, before confirmation, all nominees are fit to serve as judges. At a bare minimum, the Senate must be able to determine whether a nominee will be faithful to the Constitution itself. With Estrada, that can't happen given the current state of the record.

For most judicial nominees, the Senate can make this determination with relative ease - by reviewing the positions taken in the nominee's past writings as a judge, academic, or lawyer. But that is not the case with Estrada. He has not served as a judge, and has no academic writings. And his lawyerly writings are kept under lock and key - either in the Supreme Court building, or in the Solicitor General's office. In both places, Estrada very likely wrote numerous memos to his bosses making recommendations about how particular cases should be evaluated.

The Executive Branch, however, has declined to produce internal documents from Estrada's days in the Solicitor General's office. This is a defensible response in light of the fact that the U.S. government, like all clients, needs sound legal advice. Revealing such advice might chill attorneys in the Solicitor General's office from being full and frank in the future. Future S.G.'s Office lawyers might be loath to recommend politically unpopular but correct decisions by the Office - for they might be always calculating how their advice might play in some future confirmation hearing.

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Given the lack of a written record, Estrada had to carry a special burden in his confirmation hearings. He had to illuminate the Senate (and the public) as to his philosophies and beliefs about the Constitution. He had to draw a picture of the kind of judge he would be - how he would do something he'd never done before: decide constitutional cases.

Unfortunately, many found the picture Estrada drew unconvincing. Indeed, many observes, including some members of the Committee on the Judiciary, believed that Estrada was less than candid in his responses to questions in the confirmation hearings. For example, in a recent column for FindLaw, Edward Lazarus characterized as "almost laughable" Estrada's claim that he'd never considered whether Roe v. Wade had been correctly decided.

Abortion apparently was an issue hotly discussed among Supreme Court clerks, the very year that Lazarus and Estrada both clerked for the Court, so Lazarus has strong grounds for his opinion. And in any event, even if Estrada had somehow never considered Roe before, shouldn't the decision - one of the Supreme Court's very most important - have come to mind as he was preparing for his confirmation hearings?

If Estrada is not willing to talk about Roe, that's one thing - some nominees have taken the position that they cannot say much because it is unethical to bind themselves as to how they would decide future cases. If he's not willing to think about Roe, that's very much another. Do we really want a federal appeals judge who never gave a thought to Roe until he was actually sitting on the court?

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In the face of this stonewalling, a filibuster is entirely appropriate. Indeed, it's fitting. Using a procedural tool against a nominee who thwarts minimal confirmation procedures, is only right. If Estrada wants the Democrats to stop talking, he should offer to start. As a nominee, that's what's required of him.

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Myself, I don't understand this grilling in the first place. Normally, judges aren't supposed to be biased on the bench, and their personal views are supposed to be irrelevant. And they certainly can't tell you how they're going to rule on any particular case. But these folk WANT to know what his personal beliefs are? They WANT to know in advance how he'll vote on a case that hasn't come up yet? Why? Certainly it won't make a difference, if he's a GOOD judge.

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Ideological litmus tests are concededly unfair, but it is also unfair for the Senate to know nothing of a nominee's true thinking with respect to constitutional law. It is crucially important to know who a nominee is and what he or she stands for before he or she confirmed to a lifetime job as a federal judge.

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He refused to answer reasonable questions from Senators; he refused even to bother to think about Roe.

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If he were confirmed to the Court of Appeals, would he similarly decline to think about cases that were not directly in front of him, no matter how significant they might be? A head-in-the-sand judge can't put the case in front of him in context, or see the big picture, and Estrada threatens to be just such a judge.

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...his approval for a full Senate vote went through while the Democrats were still in charge of the JC

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Myself, I don't understand this grilling in the first place.

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If Estrada is not willing to talk about Roe, that's one thing - some nominees have taken the position that they cannot say much because it is unethical to bind themselves as to how they would decide future cases. If he's not willing to think about Roe, that's very much another. Do we really want a federal appeals judge who never gave a thought to Roe until he was actually sitting on the court?

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