Posted on 02/28/2003 8:21:45 AM PST by Ragtime Cowgirl
Truth a Frequent Casualty in People for the American Way Memo on Estrada Nomination
2/27/2003
To: Journalists
From: Thomas L. Jipping, J.D.
Director, Judicial Appointments Project
Re: Truth a Frequent Casualty in People for the American Way (PFAW) Memo on Estrada Nomination
Date: February 26, 2003
PFAW president Ralph G. Neas' February 24 memo to journalists regarding the appeals court nomination of Miguel Estrada is marked by frequently repeated assertions that are demonstrably false.
Hispanic Support for Estrada is Diverse, Opposition is Not
National Hispanic organizations oppose and support Mr. Estrada's nomination. Not surprisingly, Mr. Neas completely ignored Hispanic support and, in so doing, no doubt hopes to obscure some very important differences between the opposition and support. Prominent opposition groups, such as the Mexican American Legal Defense and Educational Fund (MALDEF), have reflexively taken the liberal side on virtually every political issue. MALDEF is a member of the leftist Alliance for Justice, which routinely opposes Republican judicial nominees. Research has yet to disclose MALDEF's announced support for a Republican appeals court nominee.
Similarly, the Congressional Hispanic Caucus has an exclusively Democrat membership and research has not disclosed its announced support for a single Republican appeals court nominee. Every Hispanic Republican House member supports Mr. Estrada.
In contrast, the Hispanic organizations supporting the Estrada nomination are more politically diverse and less ideologically rigid. Several of the national groups have not previously been publicly involved in judicial appointment controversies. Other prominent groups, such as the League of United Latin American Citizens and National Hispanic Bar Association, have in the past supported judicial nominees of both parties.
No Precedent Exists During Republican Senate Control
Mr. Neas states: "Unmentioned by Republican senators, of course, is their successful blocking of Hispanic Circuit Court Court nominees Jorge Rangel, Enrique Moreno and Christine Arguello, who were prevented from getting a hearing or a vote, and stalling of others, like Richard Paez, for four years."
None of these nominees, of course, was filibustered to prevent a full Senate vote following Judiciary Committee approval. Richard Paez was, in fact, confirmed to the Ninth Circuit. If Mr. Neas argues that treatment of Judge Paez should be the model for treatment of Mr. Estrada, the Senate should stop the filibuster immediately and confirm Mr. Estrada. Republicans never filibustered a single Clinton nominee.
Unmentioned by Mr. Neas, of course, are the reasons the other nominees did not receive a Judiciary Committee hearing. As Mr. Neas surely knows, Judiciary Committee chairmen of both parties require White House consultation with a state's two senators before nominating someone to serve as a judge in that state. Mr. Neas knows that lack of consultation is one of the primary reasons for home-state senators' opposition. Mr. Neas knows that he and other leftists have urged Democrat senators to use this home-state opposition to block other Bush nominees. Mr. Neas also knows that the nominees he cites here did not receive hearings for this very same reason: the Clinton administration's refusal to consult with Republican senators. Finally, Mr. Neas knows that this crucial fact bears no relationship to the Estrada filibuster and makes any comparison with the Estrada nomination totally illegitimate.
No Partisan Filibuster Has Ever Defeated a Judicial Nominee
Mr. Neas' claim that "cloture votes have been required to end debate on a number of judicial nominations" is false. As Mr. Neas surely knows, taking a cloture vote does not mean that a filibuster exists. The Senate has taken 15 cloture votes on judicial nominees and nearly all of them were to prevent, not to stop, a filibuster. Twelve of those cloture votes succeeded, and all 12 nominees were confirmed. The Senate also later confirmed two of the three nominees on whom a single cloture vote failed. So if Mr. Neas thinks the Senate should treat Mr. Estrada consistent with past practice, it should confirm Mr. Estrada immediately.
Even the lone example of the Senate defeating a judicial nominee with a filibuster provides no precedent. The 43 senators who voted against cloture on the 1968 nomination of Abe Fortas to be Chief Justice included 24 Republicans and 19 Democrats. The Senate has never defeated a single judicial nominee on a purely partisan filibuster such as Democrats have launched against Mr. Estrada. If the first purely partisan filibuster against a judicial nominee in American history is not "partisanship run amok," what is?
Mr. Neas' Own Examples Fail to Support His Argument
Unmentioned by Mr. Neas, of course, are relevant facts concerning even his own cloture vote examples. His claim that "cloture votes were necessary to obtain votes on the nomination[s] of both Richard Paez and Marsha Berzon to the Ninth Circuit" is patently false. Then-Majority Leader Sen. Trent Lott promised on November 10, 1999, that he would bring up the Paez and Berzon nominations for a vote by March 15, 2000. He did so on March 8, 2000. Mr. Neas observes that the Senate took a cloture vote on both nominations but, not surprisingly, fails to note that only 14 senators supported cloture on Paez and only 13 supported cloture on Berzon. Both were confirmed the next day.
Opposed Senators' Most Powerful Option is to Vote Against Estrada
Mr. Neas' claim that senators' "only other option would be to stand aside" is laughable on its face. Senators' primary option is what defines their constitutional duty: the vote. A filibuster blocks legislative options; it does not create, preserve, or expand them. Every senator can vote for or against Mr. Estrada for any reason, for no reason, and even for Mr. Neas' reasons. The vote is the one thing that only senators can do. It is their most potent and powerful option. Mr. Neas suggests that being on the losing side of such a vote somehow equates with a "dereliction of senators' duty to the American people." That, of course, is patently absurd. A bi-partisan Senate majority supports Mr. Estrada's nomination and, knowing that, a leftist minority's only option is to keep the Senate from doing its constitutional duty.
Many Democrat senators have echoed Mr. Neas' call here that they not be "bullied into rubber stamping" judicial nominees. Had Democrats been a rubber stamp, they would not have made Mr. Estrada wait 505 days for a hearing. Had Democrats been a rubber stamp, they would not have made Mr. Estrada appear alone for a six-hour hearing. Democrats asked him any questions they chose, and had every opportunity to ask any follow-up questions. They have an extensive written record, including Mr. Estrada's written answers to the Judiciary Committee's questionnaire. Democrats also have the results of the ABA's evaluation, the rating that they once called the "gold standard" for evaluating judicial nominees. Democrats have made unprecedented demands for confidential documents, and have engaged in an unprecedented filibuster. They have hardly been a rubber stamp. It remains a mystery how a senator who votes against Mr. Estrada could be considered a rubber stamp. So if Senate Democrats want to demonstrate they are not a rubber stamp, they should vote against the nomination.
Mr. Neas appears to be claiming that the Senate acts as a proper check on the president's power to appoint judges only when they vote the way Mr. Neas wants them to, only when the final vote tally goes his way. The Senate is a check on the president's appointment power if it acts; it undermines, and tries to highjack, that appointment power if it refuses to act by an unprecedented filibuster. The best way for senators opposed to Mr. Estrada to check the president's power is to vote against the nomination.
Mr. Estrada Answered Every Legitimate Question
Mr. Neas' claim that Mr. Estrasda "has refused to answer basic questions about his legal philosophy and how he would interpret the Constitution as an appellate judge" is simply false. Appellate judges are obligated to interpret the Constitution in accord with Supreme Court precedent, and Mr. Estrada repeatedly promised to do just that.
Nonetheless, Democrat senators' questions in this area were focused not on how Mr. Estrada would reach results but on what results he would reach. They knew, as Mr. Neas surely does, that judicial nominees cannot answer such questions.
Sen. Herb Kohl (D-WI), for example, asked Mr. Estrada's opinion of the Supreme Court's federalism decisions and whether he agreed with recent district-court decisions striking down the death penalty. Sen. Dianne Feinstein (D-CA) asked: "Do you believe that Roe [v. Wade] was correctly decided?" Sen. Patrick Leahy (D-VT) asked Mr. Estrada how he would have decided Romer v. Evans, which held that states may not prohibit special rights for homosexuals.
These and other Democrats knew judicial nominees cannot answer such questions and supported many Clinton appeals court nominees who refused to do so. Those nominees include President Clinton's three appointees to the same court on which Mr. Estrada would serve.
Mr. Neas surely knows that Justice Thurgood Marshall refused to answer such questions in 1967, Justice John Paul Stevens refused to answer such questions in 1975, Justice Sandra Day O'Connor refused to answer such questions in 1981, and Justice Antonin Scalia refused to answer such questions in 1986. Mr. Neas surely knows that leading Democrats, such as Sen. Edward Kennedy (D-MA), loudly defended Justice O'Connor's refusal to discuss her abortion views, and unanimously confirmed Justice Scalia.
Democrats filibustering Mr. Estrada's nomination supported many Clinton nominees who refused to give their personal views on issues or precedents, pledging only to follow Supreme Court precedent. Again, these include the three Clinton appointees to the D.C. Circuit, the court on which Mr. Estrada would serve. In fact, even Marsha Berzon, one of Mr. Neas' most prominent examples of a nominee Republicans tried to block, said the same thing and every Democrat voted for her confirmation.
Unmentioned by Mr. Neas, of course, was that Mr. Estrada extensively discussed his legal philosophy at his hearing. He discussed with Sen. Charles Grassley (R-IA), for example, an appellate judge's obligation to follow Supreme Court precedent "even if you disagree with such precedents." Mr. Estrada explained the legal sources to which an appellate judge should turn when there exists no clear higher court precedent. He discussed judicial temperament with Sen. Leahy and many other aspects of an appellate judge's role with other Judiciary Committee members. Mr. Neas no doubt disliked, or otherwise felt dissatisfied, with Mr. Estrada's answers. But it is simply a lie to claim Mr. Estrada provided no answers at all.
No Precedent Exists for Releasing the SG Memos
Since 1976, the Senate has confirmed 67 appeals court nominees who had previously worked at the Justice Department, seven of them in the Solicitor General's office. The Senate has never asked any of them for the confidential memos Democrats now demand from Mr. Estrada.
The Senate has never requested comparable material from nominees who occupied comparable positions in the Solicitor General's office. Never. Every example, by Mr. Neas or Senate Democrats, involves either very different material or nominees who had occupied very different positions.
The Senate unanimously confirmed William Bryson to the Federal Circuit on September 28, 1994. Like Mr. Estrada, he had clerked on the U.S. Court of Appeals for the Second Circuit and on the Supreme Court. Like Mr. Estrada, he had no previous judicial experience. Like Mr. Estrada, he had previously served as an assistant to the Solicitor General. Unlike Mr. Estrada, Mr. Bryson was never asked for his SG memos.
The Senate unanimously confirmed Samuel Alito to the Third Circuit on April 27, 1990. Like Mr. Estrada, he had been an Assistant U.S. Attorney. Like Mr. Estrada, he had no previous judicial experience. Like Mr. Estrada, he had been an assistant to the Solicitor General. Unlike Mr. Estrada, Mr. Alito was never asked for his SG memos.
The Senate unanimously confirmed A. Raymond Randolph to the D.C. Circuit, the very court on which Mr. Estrada would serve, on July 13, 1990. Like Mr. Estrada, he had clerked on the Second Circuit. Like Mr. Estrada, he had no previous judicial experience. Like Mr. Estrada, he had been an assistant to the Solicitor General. Unlike Mr. Estrada, Mr. Randolph was never asked for his SG memos.
It should be enough that every living former Solicitor General has signed a letter opposing release of confidential memos by their assistants. Neither Mr. Neas nor any Senate Democrat has identified anything in that letter with which they disagree, nor explained why they would sacrifice the essential integrity of the Solicitor General's office as a condition of voting on Mr. Estrada's nomination.
Senators, and Mr. Neas, can oppose the Estrada nomination for any reason or no reason at all. But they should tell the truth about it.
Truth?
Remember, we are talking Democrats here. Last time they saw truth it was flying out of the window.
QUITE the contrary, given that Estrada has the votes to be confirmed, it is 45 Dem Senators that are thwarting the EXPRESS WILL of the American people through their elected representatives.
QUITE the contrary, given that Estrada has the votes to be confirmed, it is 45 Dem Senators that are thwarting the EXPRESS WILL of the American people through their elected representatives.
QUITE the contrary, given that Estrada has the votes to be confirmed, it is 45 Dem Senators that are thwarting the EXPRESS WILL of the American people through their elected representatives.
Quite the contrary, given that Estrada has the votes to pass, it is 45 Dem Senators that are thwarting the will of the American people.
Quite right - and worth repeating. (^;
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