“I Hereby Nominate Miguel Estrada for the Supreme Court”
President Bush has won, and he owes his base. The best way for him to repay this debt would be to finally fight hard for good, conservative judges. And one of the best ways to start would be by renominating Miguel Estrada — preferably to the United States Supreme Court. Renominating Estrada in a highly visible way would be a smart move for Bush (as well as the right thing to do).
I have written extensively about Miguel Estrada, who is among the most qualified individuals ever nominated to a circuit court judgeship. I previously described his qualifications in this post:
[Estrada] was rated “unanimously well-qualified” (the highest possible rating) by the American Bar Association. He was Phi Beta Kappa at Columbia University, where he graduated magna cum laude. He also graduated magna cum laude from Harvard Law School, where he was an editor on the Law Review. He was a law clerk to a respected judge on the federal Court of Appeals, and then to Supreme Court Justice Anthony Kennedy. He has been an Assistant U.S. Attorney, an Assistant to the Solicitor General, and a partner at a major law firm. He has argued over a dozen cases in the United States Supreme Court, and has been praised as a brilliant lawyer by many prominent Democrats from the Clinton-era Justice Department.
As I described in this post, charges that Estrada’s personal conservatism would color his judicial judgment are unfounded. For example, he successfully represented NOW in a highly visible abortion-rights case in the Supreme Court called National Organization of Women v. Scheidler. And on the issue of Roe v. Wade, he gave the proper answer for someone nominated to a circuit judgeship, saying that Roe v. Wade “is the law . . . and I will follow it.”
Senate Democrats made outrageous claims in support of their filibuster of Estrada. Former Chief Obstructionist Tom Daschle claimed:
It’s unprecedented that he would deny us the right to the information that so many of his predecessors have provided.
This was a blatant lie. What, exactly, was unprecedented, Mr. Just-Tossed-Out-On-His-Ass Daschle?
Well, Democrats had complained that Estrada wouldn’t turn over copies of memos that he wrote while working as a lawyer for the Justice Department. But as I have previously observed:
No judicial nominee in history has been asked for all the memos they wrote for the Justice Department, though 67 previous nominees worked for DoJ.
All living former solicitors general said the request was improper.
Democrats had also complained that Estrada “wouldn’t answer questions.” But even the Washington Post said that “his answers were similar in nature to those of previous nominees, including many nominated by Democratic presidents.”
The arguments against Estrada were transparently phony. It was a clear double standard. (Stuart Buck argued that Estrada would have a good claim under Title VII, if that law applied to his situation.)
The bottom line, as the Washington Post recognized, was that “Democrats don’t want to put a conservative on the court.” What’s more, they were obviously trying to get payback for the treatment of judicial nominees during the Clinton years. This attitude earned them the name I bestowed upon them: “Retaliacrats.”
Nevertheless, the overly patient White House tried to resolve the impasse, and offered Democratic Senators several ways to get more information on Estrada without violating the historic confidentiality of internal Justice Department memos. Senators could submit written questions, interview Estrada further, or talk to any of several prominent Democrats who had supervised him at the Solicitor General’s office and saw his memos.
Only two Senators bothered to respond, and Estrada’s answers were impressive.
One of those Senators was Dick Durbin. Eventually, it emerged that a staffer to Durbin had opposed Estrada from the get-go, in part due to a fear that Estrada might really do well as a successful Latino. This staffer had written a secret memo advising Durbin about the desires of certain civil-rights groups with whom the staffer had met. That memo described Estrada as “especially dangerous” in part because “he is Latino.” Quoting from the memo to Senator Durbin:
The groups singled out three [nominees] — Jeffrey Sutton (6th Circuit); Priscilla Owen (5th Circuit); and Caroline [sic] Kuhl (9th Circuit) — as a potential nominee for a contentious hearing early next year, with a [sic] eye to voting him or her down in Committee. They also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.
Eventually, Estrada gave up, unwilling to let his life be held hostage by the scum running things for the Democrats in the Senate.
This all makes a great story: a highly qualified Hispanic being subjected to a clear double standard by Democrats.
But almost nobody in the nation heard the story. It was inside baseball: a filibuster over a Circuit Court of Appeals judgeship, in a country where maybe 5% of the people understand what that job entails. Estrada was a good man who got royally screwed by soulless, cynical obstructionists like loser Tom Daschle. But Americans didn’t really hear about this.
But if he were nominated for the Supreme Court . . . ahhh, well that might be a very different story. The first Hispanic Supreme Court Justice — blocked for the kind of phony reasons I have just been discussing??
What additional argument could the Democrats use to oppose him now? Any such argument would be met with a clear response:
- Argument: We rejected him before!
Response: Your reasons were phony then and they’re phony now.
or maybe:
- Argument: He has no previous judicial experience!
Response: Maybe he should be Chief Justice, then — like other Chief Justices with no previous judicial experience before they came to the Court, including Earl Warren or William Rehnquist. Other Justices with no previous judicial experience include Louis Brandeis, Byron White, and Lewis Powell. Of course, none of those folks was Hispanic — and therefore “especially dangerous” according to you Democrats . . .
I think this would be a great story to get before the American people. Looking at cynical political considerations, Bush could draw more Hispanics into the Republican fold. Looking at the good of the country, Estrada would be a great Supreme Court Justice. From everything I have ever heard [but see P.P.P.S. below], he is a genuine conservative who would be perfect for conservatives like myself.
It would take guts. But, like I said, Bush owes his base, big. If he’s going to show guts, this would be a good way to do it.
Miguel Estrada for the Supreme Court!!
P.S. Don’t talk to me about Alberto Gonzales. A conservative, please!
P.P.S. The Clam has some good suggestions. I especially like Jones, Luttig, and Wilkinson. And how about Eugene Volokh?? He’d made a damn good judge!
P.P.P.S. The Clam also objects that Estrada is a potential moderate Souter-style nominee. I am highly skeptical — but if the Clam (or anyone else) could convince me of this, I’d switch my support to the folks mentioned in the previous postscript.
I’d still want to see Estrada renominated for the D.C. Circuit, just for the “in your face” value.
UPDATE: I added the words “before they came to the Court” to the post for the sake of clarity, in response to a comment below by Matto Ichiban.
UPDATE x2: Thanks to How Appealing’s Howard Bashman for linking to this post. I hope any new readers will bookmark my main page and return often.
UPDATE x3: Thanks also to Jonathan H. Adler of NRO’s The Corner for the link.
UPDATE x4: Many commenters — the first being Spoons — are making the very good point that an important part of getting good judicial appointments is blocking Arlen Specter from becoming the chair of the Judiciary Committee. I agree that this is critical. Call Bill Frist at 202-224-3344 or e-mail him using this contact form, and tell him we will not tolerate Arlen Specter as Judiciary Committee Chairman.
This is a helluva loingshot, but if you really want something like this to happen, there’s one thing you have to do first:
Stop Arlen Specter from being Senate Judiciary Chairman.
I’ve got several items up on this today: keep scrolling.
Comment by Spoons — 11/4/2004 @ 7:11 am
Listen to Spoons. Arlen Specter is the impediment to appointing solid conservative judges; If he is allowed to have his way, expect more Souter’s.
Comment by The Old Coot — 11/4/2004 @ 7:42 am
One thing: Rehnquist did have several years experience as an associate Justice before becoming Chief Justice
But for all I know you’re right about not having any experience before that.
Comment by Matto Ichiban — 11/4/2004 @ 8:22 am
Matto,
That is indeed what I meant, but point taken. It wasn’t expressed well. I’ll try to make it more clear.
Comment by Patterico — 11/4/2004 @ 9:38 am
I second the nomination.
Comment by Rod Stanton — 11/4/2004 @ 10:07 am
Add my plea for Estrada. After him? Justice Janice Brown.
Comment by Peter — 11/4/2004 @ 11:27 am
PATTERICO –
“I Hereby Nominate Miguel Estrada for the Supreme Court.”…
Trackback by PRESTOPUNDIT -- "It's a team sport, baby!" — 11/4/2004 @ 11:31 am
Snarlin’ Arlen hasn’t let us down. As of Thursday morning, he has already declared that the President does “not have a mandate,” and should be extremely cautious about nominating a “right-wing ideologue.” I assume he would include Miguel Estrada in that group. I’m a lawyer, not a parliamentarian, but there must be a Senate majority procedure for dumping Specter and putting an actual Republican in charge of the Judiciary Committee.
Comment by Laurence G. Hawk JD — 11/4/2004 @ 11:36 am
Please pass this on to all you can:
If you agree—if you agree that good men and women cannot be kept off the Supreme Court because they are against abortion (disqualifying, for starters, any faithful Catholic, many evangelicals, Muslims, automatically…)—call and e-mail Bill Frist (and your Republican senators, if applicable) today. I’m pretty certain an overwhelming outcry from conservatives in the next few days is the only way Arlen Specter can be kept from becoming a huge obstacle.
So get to work. Frist’s number is 202-224-3344.
P.S. I’d congratulate Frist on his great wins in the Senate, too!
Comment by Jason — 11/4/2004 @ 11:45 am
Concur on Estrada. He’s exceptionally well-qualified to sit on any Court — including the Supreme Court.
One way to get Estrada on (and stop the Dems from sniveling too loudly) is, in the event of a Rehnquist retirement (which, I’m afraid to say, sounds relatively imminent), elevate a Democratic justice to chief (Breyer or Ginsburg) and then fill that judge’s seat with Estrada. Make clear that this is a package — no Estrada, no Chief Justice Breyer (this is sort of how Nixon got Rehnquist on — packaged with the conservative Democrat Lewis Powell). Breyer or Ginsburg as Chief would be mostly harmless (and history-making: the first Jewish Chief!), and the benefit of having Estrada on the Court for 40 years definitely outweighs any marginal costs.
As for Arlen: I’ve got an easy solution for him. Bush should nominate him to the D.C. Circuit. Wouldn’t Arlen prefer to spend his final days as a lifetime appointee then butting heads with conservatives on the Hill? I’d bet so.
Comment by D.J. — 11/4/2004 @ 11:55 am
The quote attributed to Arlen Spector in the AP is from Lara Lakes Jordan. I trust her accuracy like I trust Dan Rather. Ms. Jordan is chum with Hillary Clinton. She’s advised Hillary on media relations and is an old friend.
Lara Lakes Jordan writes the AP stories sourced by the National Organization for Women.
Don’t believe the quotes for a second.
Comment by Brennan Stout — 11/4/2004 @ 11:57 am
Here’re my cabinet suggestions for W:
State - Danforth
UN - Condie
NSA - Wolfie
DOD - Rummy (or Franks)
DOJ - Estrada (or Rudy)
SCOTUS -
CJ - Clarence Thomas
AJ - Larry Thompson
(a former Deputy AG; a black conservative)-
(or Rudy)
DHS - Franks (or Rudy)
Commerce - Jack Welch
NID - Goss (or Rudy)
DOT - Frost
http://astuteblogger.blogspot.com/2004/11/my-cabinet-suggestions.html
Comment by reliapundit — 11/4/2004 @ 12:18 pm
Amen, amen and amen! Let’s get Estrada in there — and if it means Arlen gets booted from the Senate Judiciary Committee chairmanship, so be it!
Comment by Ann — 11/4/2004 @ 12:21 pm
Good ideas, let’s let Senator Frist hear us. But don’t let’s suggest any of the liberal justices for Chief. Read The Brethren. The Chief Justice has a lot of power and influence, for example assigning which justice writes an opinion. Although technically he has no more say than anyone else, as “chairman” he has a lot of subtle influence. Estrada, Janice Brown, or Scalia for Chief.
Comment by Alice — 11/4/2004 @ 1:07 pm
Just wandered on here. Beware Eugene Volokh for SCT, whomever suggested that. He’s struck me as more moderate and libertarian than conservative in the past. If you simply want a principled, conservative, brilliant, professor-type, he should nominate Judge Michael McConnell.
Comment by J — 11/4/2004 @ 1:15 pm
Alice, I’ve read the Brethren and I’m quite familiar with the Chief’s power at conference. What you might have missed there is that the Chief assigns opinions at conference when he’s in the MAJORITY. Otherwise, the most senior Justice not in the majority assigns the opinions. Assuming that a Chief Breyer-led Court continues to have a 5 conservative-majority, the most senior conservative would assign opinions in 5-to-4 cases. That means that O’Connor would act as de facto chief so long as she’s on the Court — which won’t be for too much longer (no more than a year). Once O’Connor’s gone, the next-most-senior conservative will get to assign authorship in close cases. And who’s that? Antonin Scalia.
What I’m proposing here is a back-door naming of Justice Scalia as Chief Justice! What are your objections now, Alice?
Comment by D.J. — 11/4/2004 @ 1:19 pm
Brennan,
Lara Lakes Jordan or not, you don’t see Specter denying the story. And he did nothing to help the President in PA despite the President’s and Santorum’s help in the primary. There is still a lot of anger among conservative voters in PA about Toomey’s narrow defeat which was largely due to the President’s support. Support which Specter did not repay in the general election. When the VP mentioned the absent Specter (he was always absent from the PA national ticket rallies) at a rally as being part of the Republican ticket, Specter was booed. There is great concern in PA about the coming term because it is likely to be his last and Specter always ran as a conservative and then legislated as a liberal until the year or two before his relection campaigns. Remember he borked Bork before he supported Thomas.
Comment by Susann — 11/4/2004 @ 1:38 pm
Well, Specter did actually deny it in a statement, but it’s very obvious he did because conservatives got pissed.
Comment by The Angry Clam — 11/4/2004 @ 4:16 pm
You forgot about Janice Brown, the Associate Justice from the California Supreme Court whom Bush nominated for the DC Circuit and was fillibustered. A black woman, daughter of Alabama sharecroppers, she worked her way through law school and then eventually to the Cal. Sup. Ct. The MSM completely ignored the fillibustering of her. However, if Bush nominated her to the USSCT, this would drive the Dems absolutely crazy — and I think it would be political suicide for them to oppose her.
Comment by Interested Reader — 11/4/2004 @ 4:28 pm
I haven’t forgotten about her! We’ll get more than one appointment during the next four years. She’d be a great pick. She’s included in the Angry Clam’s list of dream justices.
Comment by Patterico — 11/4/2004 @ 4:34 pm
I think it’s pretty clear to most observers that Janice Brown is a near sure-thing to replace Justice O’Connor. She’s a tough cookie, and the White House will need that toughness when the mother of all nomination fights begins the day O’Connor (the swingingest swingeron the Court) announces her retirement.
The Bushies might want to be careful: Brown is much more libertarian than many people think, contrary to the White House’s law-and-order authoritarian statism.
Comment by D.J. — 11/4/2004 @ 6:32 pm
I am wary of Estrada. He sounds and acts like Souter. I’d prefer that he nominate someone like Bork. The last thing we need is another Souter.
Comment by Thomas J. Jackson — 11/4/2004 @ 8:03 pm
Tough to get past the Senate
More blog posts urging Eugene Volokh for the Supreme Court. I have had brief exchanges with Volokh, and found him…
Trackback by AtlanticBlog — 11/5/2004 @ 6:23 am
Aside from firmly opposing Specter it would be wise to support abolition of the cloture rule. The super majority provision was never intended to be used as it has been in the past two years and it is detrimental to governance. Additionally, I hope Frist has the guts to assign Teddy and Pat Leahy parking spaces in Bethesda. Arlen too.
Seat apportionment on committees is no longer going to be 50-50. I’m looking forward to hearing the howls from the Dems when the staff reductions begin.
Comment by Rick Ballard — 11/5/2004 @ 10:33 am
The redstate folks have set up http://www.notspecter.com,
Preventing Arlen from becoming chairmen would probably help us a great deal.
Comment by Juice — 11/5/2004 @ 9:06 pm
I know it’s hard to believe but Arlen’s hand is in the cookie jar. http://www.spectersenateethicscomlaint.com
Comment by Gerard — 11/8/2004 @ 5:13 am