A Defense of the Estrada Filibuster:
A Judicial Nominee That the Senate Cannot Judge

By KEVIN R. JOHNSON
Thursday, Feb. 27, 2003

For several weeks, Democratic members of the United States Senate have been engaging in a filibuster to prevent the confirmation of Miguel Estrada - whom President George W. Bush nominated to serve as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. It is the first time in U.S. history that this extraordinary measure has been employed to block the confirmation of a court of appeals (rather than a Supreme Court) nominee.

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.

Their opposition to Estrada is all the more jarring because they have every reason to want to support him, but still do not. They know that the nation has much work to do to ensure that qualified women, African-Americans, Asian-Americans, Native Americans, and Latinas and Latinos serve as judges. And they are committed to diversifying the federal judiciary - because, among other reasons, in a multiracial America, a diverse judiciary is necessary to ensure public confidence in the courts and the evenhanded administration of the rule of law.

Like these groups, I reluctantly support the filibuster of Estrada's nomination. The holes in the record are so gaping that the Senate lacks the information necessary to fully evaluate Estrada's qualifications for a lifetime post on the federal bench.

The Larger Stakes: Estrada as a Potential Supreme Court Nominee

It's important to note, initially, that Estrada's is not a run-of-the-mill federal appeals court confirmation - for three reasons.

First, the U.S. Court of Appeals for the District of Columbia Circuit is perhaps the most important lower court in the United States. With jurisdiction over the District of Columbia, the home of the federal government, it decides many important cases involving national policy. A judge on the D.C. Circuit can have dramatic impact on the law on a national scale.

Second, in part because of the D.C. Circuit's exceptional influence, it may be Estrada's stepping stone to the Supreme Court. Consider the example of Justice Antonin Scalia: After a career as a law professor, Scalia served on the D.C. Circuit before being elevated to the Supreme Court. Many observers believe that Estrada could well follow Scalia's path.

Third, this controversial confirmation process will likely establish a pattern for future judicial appointments by the Bush administration. It is rumored that a Supreme Court vacancy - perhaps vacancies - will soon be available. Now any question as to whether the Democrats will use the last-resort tactic of the filibuster for nominees whose refuse to reveal their views has been resolved - and that's a good thing. In addition, Democrats have properly used the Estrada nomination to set the tone for future confirmations. That's also a good thing, given that the process was left in a shambles after the wild, no-holds-barred confirmation of Clarence Thomas.

Thus, we are seeing a preview of what will happen if the Bush administration follows a Miguel Estrada strategy with a Supreme Court nominee. Both Democrats and Republicans want to win the war of wills, and establish the ground rules in this preliminary judicial skirmish. Having taken the filibuster route, the Democrats are unable to back down. That's fine, because they shouldn't: Estrada has put himself in a position in which he is simply unconfirmable.

The Problem with Estrada's Confirmation: The Lack of a Record for the Senate to Access

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.

So as far as written evidence is concerned, there is only one thing the Senate can do. It can review the briefs that Estrada filed on behalf of the United States in the Court. Unfortunately, such briefs are generally a collective effort, and thus are not as indicative of his views as his own memoranda would be.

In writing his briefs, Estrada would have had to incorporate his bosses', and sometimes also his colleagues', comments and changes into the final draft. The memos he wrote solo, however, are a different story: Those ought to reflect his, and only his, advice.

Lack of A Written Record Means Estrada's Testimony was All the More Key

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 this site, 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?

Meanwhile, the lingering questions about Estrada's views go far beyond Roe itself. Serious questions have been raised by Estrada's sparse record on basic civil rights and constitutional matters. These questions deserve serious responses, and require full disclosure.

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.

Pure Politics? Not Necessarily: Estrada's Own Tactics Doomed Him

Republicans have claimed that the opposition to Miguel Estrada's confirmation is simply partisan politics at work. The claim is that Democrats, and certain interest groups, simply do not like Estrada's political views. But that ignores the role that Estrada himself has played in torpedoing his confirmation. He refused to answer reasonable questions from Senators; he refused even to bother to think about Roe. 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.

Politics are obviously playing a role. But a nonpolitical principle, derived from the Constitution, is also at work here. It's simple: The Senate has a duty and obligation to collect the necessary information to determine whether a nominee should be confirmed. Estrada, and the Executive Branch, have made sure they can't collect it.

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.


Kevin R. Johnson is Associate Dean for Academic Affairs and Professor of Law and Chicana/o Studies at the University of California, Davis. Johnson is the author of How Did You Get To Be Mexican? A White/Brown Man's Search for Identity (Temple University Press, 1999), and "On the Appointment of a Latina/o to the Supreme Court," an article that appeared in Volume 5 of this year's Harvard Latino Law Review. Johnson also wrote an earlier column for this site on the implications of the Estrada nomination.

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