Trashing Estrada

The Senate Democrats conducting a filibuster against the confirmation of Harvard Law School graduate Miguel A. Estrada give as their reason that Estrada would not answer questions about how he would decide cases that came before him, would not criticize Supreme Court precedents and that the Department of Justice would not release drafts of confidential memoranda he wrote as an assistant to the Solicitor General in both Republican and Democrat administrations. This position is untenable.

Although on its editorial page The New York Times cheers on the Democrat filibuster, in its own news pages it has reported that every living Solicitor General, Republican and Democrat, has signed a letter to the Senate Judiciary Committee stating that the release of their staff’s confidential memorandum to the Solicitor General would be unprecedented and severely damaging to the professionalism and efficacy of the office. The Times has also reported that the unsubstantiated canard being floated by one disgruntled and partisan former colleague criticizing the quality of Estrada’s work in the Solicitor’s General office was contradicted by Estrada’s chief, the Democratic Solicitor General at the time.

Estrada has refused to be drawn into discussions of how he would decide cases that would come before him or to criticize Supreme Court opinions that, as a lower court judge, he would be bound faithfully to apply. The Times has also reported that the American Bar Association has a canon of judicial ethics that condemns as unethical just such statements by judges running for judicial office. And in a recent Supreme Court case, several Justices have stated that the same ethical constraints should apply to judicial nominees. Indeed both Justices Scalia and Frankfurter, among others, have sternly declined to answer those sorts of questions in the course of their confirmation hearings. As The Washington Post put it in a recent editorial: “Mr. Estrada stonewalled the Judiciary Committee by refusing to answer questions—though his answers were similar in nature to those of previous nominees, including many nominated by Democratic presidents.”

Estrada also declined to be drawn into abstract discussions about his judicial philosophy. Not every good lawyer or judge has a “judicial philosophy,” nor should they be required to have one. This is professors’ stuff, and forcing practical men and women to spout pretentious platitudes on these subjects serves no useful purpose. As has been shown time and again, answers to such questions are not even good predictors of actual judicial performance. Certainly subjecting Estrada to such a sophomoric inquisition is not necessary to assure the Senate of Estrada’s competence. Estrada is a distinguished and successful appellate lawyer, a high-ranking graduate of Harvard Law School, a former law clerk to Supreme Court Justice Anthony Kennedy and a former Assistant to the Solicitor General. He has also been given the highest rating by the American Bar Association. What the Senate Democrats regret is that they have been deprived of the opportunity to pick over the transcripts of such discussions for choice tidbits that they can take out of context and twist to partisan purposes. Estrada declined to play that game, but his refusal deprived no one of pertinent information.

Many opponents of Estrada’s nomination cite the fact that Estrada is opposed by the Alliance for Justice. Where have these people been all these years? The Alliance is a far-left pressure group that makes its living by whipping up its liberal five- and ten-dollar contributors to oppose any conservative judicial nomination that they can make a fuss about. And here they have decided to take a Republican scalp back home to their membership.

The fact is that these charges, which are mindlessly repeated, are pure political persiflage to block the confirmation of a powerful conservative intellect, who because of that intellect, his Central American ethnicity, his relative youth and his compelling life story may one day be an attractive candidate for the Supreme Court. I wonder if Estrada had not been an emigrant from Honduras whether the Democrats—not to mention the Congressional Hispanic Caucus by which many set such store—would even have taken notice, much less thought this nomination was worth the high political costs of a filibuster. I suppose that is a kind of affirmative action. To quote The Washington Post again, “[The Democrats argue] that [Estrada] is not a real Hispanic and, by the way, he was nominated only because he is Hispanic—two arguments as repugnant as they are incoherent. Underlying it all is the fact that Democrats don’t want to put a conservative on the court.”

Charles Fried is Beneficial Professor of Law at Harvard Law School. He was U.S. Solicitor General in 1985-89.