How the Miguel Estrada Nomination Illustrates Our Out-of-Control Confirmation Process, And What We Can Do to Improve the System

By EDWARD LAZARUS
Thursday, Feb. 20, 2003

With the Democrats' ongoing filibuster of the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the confirmation process has once again spun wildly out of control.

The elements of the drama are familiar. The Republicans have put up a young, conservative minority nominee who ducks the hard questions from Senate Democrats. The Democrats lack the votes to defeat the nomination on the merits. So they have seized on a side issue, in a desperate effort to derail the nomination. Both sides then trade charges of hypocrisy, racism, obstructionism, et cetera, et cetera, while the business of the Congress languishes.

Clarence Thomas, anyone?

Deja vu aside, a question has again become pressing: Can we draw any lessons from recent confirmation history to establish, going forward, any rules for the road that might help fix the political car crash that our nomination and confirmation process has become?

Here is my proposal: Suppose that - as is the case with Estrada, and as was the case with current Justice David Souter - a President nominates a candidate whose views on the major legal issues of the day are shrouded in mystery. In that event, the nominee bears an added burden of candor and persuasiveness in articulating his or her legal views before the Senate Judiciary Committee. A failure to carry that burden should be broadly recognized as a legitimate ground for rejection.

This rule, interestingly, might hurt conservative and liberal candidates alike, for it would uniformly promote honesty and transparency whoever the candidate might be. For instance, it might have revealed that David Souter was not inclined to overrule Roe.

How the Estrada Confirmation Process Illustrates the Trouble with Stealth Nominees

The utility of this rule emerges clearly from a review of the Estrada nomination.

In putting up Estrada for the nation's second most prestigious court, the Bush Administration is engaged in both a highly ideological and cynical enterprise. Administration officials advance Estrada as just a damn good lawyer who deserves to be a judge. Yet the former Supreme Court clerks and Federalist Society types who vet judicial nominees know they're getting a lot more than that.

It's true: Estrada is a damn good lawyer. But so are many, many others, of every ethnic background.

Estrada also just happens to have a deeply felt and exquisitely conservative approach to the law. Granted, he's managed to avoid taking public stands on the key hot button confirmation issues, such as abortion or affirmative action. But that may have been in anticipation of this very day.

Estrada has been an academic star, and conservative darling, at least since law school. He was a Supreme Court clerk, and he worked in the U.S. Solicitor's General's Office. Surely the possibility of a nomination has crossed his mind, and the advantage of not leaving a paper trail did not escape that excellent mind.

In short, Estrada is that perfect "stealth candidate." And unlike David Souter, he is highly unlikely to disappoint his conservative patrons after elevation to the bench.

How Estrada's Nomination Shows Both Parties' Cynicism

For the Republicans, these are not the only benefits Estrada offers. There's also icing on the cake. Estrada is only forty-one - very young for elevation to the bench, guaranteeing him a particularly long tenure if he's confirmed. Again, the nomination is reminiscent of Clarence Thomas's - Thomas was forty-three when nominated for the Court.

Currently, the current average age of a Supreme Court Justice - even with Thomas to bring down the average - is about sixty-eight years old. Justice Stevens, the Court's oldest Justice and most liberal, is far into his eighties. If Estrada and Thomas cannot outargue their brethren, they will, at least, certainly outlive them.

Another advantage, from the Republicans' point of view, is that Estrada is Hispanic. Indeed, Spanish is his first language, and he immigrated with his parents to this country in his teens. That makes opposition politically difficult for Democrats afraid of alienating a core ethnic constituency that sees Estrada's story as an "American Dream" story. It also qualifies Estrada as a possible choice to be the first Hispanic Supreme Court Justice.

In opposing Estrada, Senate Democrats are also engaged in a highly ideological and cynical enterprise. They, too, know exactly what they're getting in Estrada. Despite his lack of paper trail, Estrada's very conservative ideological commitments are well-known in the rarefied legal circles in which he travels. No doubt, plenty of Estrada's more liberal former colleagues have briefed the Democratic staffers.

At the same time, Democrats know that without a smoking gun document recording Estrada as taking some politically untenable stand, voting down Estrada on the merits of his candidacy just won't sell very well.

For this reason, Democrats are filibustering. Their real complaint is what they know (but can't prove) to be Estrada's super-conservative views. But they have focused their filibuster on a side issue: The Administration's refusal to hand over the confidential internal memos Estrada wrote when he served as an assistant to the Solicitor General, the Justice Department official charged with representing the United States before the Supreme Court.

This is a great chess move. The Democrats can be pretty sure that Estrada's undoubtedly candid memos to the Solicitor General about cases percolating through the federal courts will contain lots of evidence of Estrada's sometimes extreme views. And they can be pretty sure, as well, that the Administration won't turn over these memos, for two reasons.

First, what the memos contain would probably torpedo Estrada. Second, turning over this kind of controversial work product - memos designed to provide a channel for frank, unvarnished, and confidential advice - is a really, really bad precedent to set. Making a political football out of confidential advice only discourages government lawyers from doing their jobs well.

Or, put differently, is there some way to make a reasonable judgment about which side should back down - the President by withdrawing Estrada, or the Senate Democrats by ending their filibuster?

I think the answer is yes.

How to Resolve the Estrada Stalemate

The President, as the first mover in the nomination and confirmation process, started the problem. He is therefore more culpable in creating the current stalemate, and accordingly should back down.

As I've written in earlier columns for this site, the President has the right to choose judicial nominees on the basis of ideology. His electoral mandate surely includes a mandate to appoint likeminded judges. But the Senate equally has the right to veto nominees based on ideology too. And the President defeats that Senatorial prerogative when, as in the case of Estrada, he attempts to jam the Senate's ideological radar by offering a blank public record.

It's not just that he's chosen a nominee who hasn't taken public stands previously. That is perfectly fine. It's that Presidential advisors are doubtless counseling Estrada to avoid taking any such stands in the confirmation process, either.

The result is that insiders know all too well what Estrada probably thinks, but the public has little clue - not exactly an attractive situation in a democracy.

Why Estrada and His Advisors Need to Follow the Example of Souter and His Advisors

Compare David Souter's confirmation hearing. He made up for his lack of a "paper trail" by creating a "testimony trail." Estrada, in contrast, wants to leave no trail at all.

Souter was candid and honest in his confirmation hearings. He said he was a conservative in the mold of former Supreme Court Justice John Harlan. Ironically, that makes him something of a "liberal" on the current Court - and sure enough, based on his voting record on the Court, that is exactly what Souter has turned out to be.

In any event, the key point for present purposes is that Souter took it upon himself to fill in the gaps in the public record, as Estrada has not. He thus allowed the Senate to perform its constitutional duties in a meaningful and appropriate way.

Now let's look at Estrada's testimony so far. He's done a great deal of bobbing and weaving to avoid candidly expressing his views about Roe v. Wade. Unfortunately, he hasn't been able to come up with a plausible reason for all his evasions, and so they have hurt his credibility.

A Star Lawyer Who Hasn't Carefully Thought About Roe? It Isn't Possible.

Basically, Estrada has testified that he has not had occasion to consider whether Roe was rightly or wrongly decided, having never faced an actual case or controversy requiring such an evaluation.

C'mon. Does anyone really believe this? Estrada has lived and breathed conservative legal thinking for the last almost two decades. He came of age, as an intellectual and lawyer, during the Robert Bork hearings, when Roe played a central role in the defeat of a conservative icon's Supreme Court nomination. In addition, Estrada clerked at the Supreme Court at the time when the elder Bush Administration first asked the Court to formally reconsider Roe. And after that, he went to the Solicitor General's office, where issues of constitutional interpretation are the very stuff of daily life.

It was bad enough when Clarence Thomas denied discussing Roe, an immediate landmark case, as a law student. But Thomas, at least, was merely a law student and may not have had a bent towards constitutional debate.

Estrada has no such excuse. Roe has emerged as the single most important case for constitutional thinkers in the last 30 years, perhaps longer. And Estrada is a constitutional law debater. That's his stock in trade. To say that he just hasn't given Roe enough thought is almost laughable.

It's not just Estrada's fault: He's probably been told this is the only way he can get confirmed. Blame the Administration, too: It's promoting Estrada as a legal superstar and, at the same time, coaching him to insist he's legally clueless. Only one of these stances is true, and it's the former: Estrada's very smart. He knows exactly what he thinks about Roe.

In my view, thinking ill of Roe is no vice. (As I noted in a prior column, I have my own problems with the decision.) But pretending to agnosticism is.

That's because a true stealth nominee - one who not only lacks a paper trail, but who also is not forthcoming when he testifies - hands the Senate an impossible choice. It can choose to derogate its constitutional duty by voting to confirm in ignorance; one cannot "advise" or meaningfully "consent" without relevant information. Or, it can engage in a potentially very harmful search for the information the nominee will not himself provide - trying to burrow into memos he, and the Justice Department he served, appropriately believed were confidential.

The Administration should counsel Estrada to return to the Hill and provide a more comprehensive account of his views. Failing this, it should withdraw his name, and choose an alternative nominee who either has a clearer record, or is willing to provide clearer testimony.

Furthermore, if the Democrats should ever win back the White House, they should follow the same policy of candor with their own judicial nominees. Playing Blind Man's Bluff with judges and Justices who sit for life is the most dangerous of games for the country.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Lazarus knows Estrada personally, having clerked with him on the Supreme Court during the same time period.

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