Patterico's Pontifications


Confirm Roberts, Then Nominate Estrada

Filed under: General,Judiciary — Patterico @ 7:05 am

JP at Americans for Freedom is pushing Miguel Estrada to replace Justice O’Connor.

I think that, if President Bush were to wait until Roberts is confirmed to replace Rehnquist, and then nominate Estrada, that would be a stroke of utter genius.

JP reminds us of something I first noted on this blog in June 2003: John Roberts and Miguel Estrada have nearly identical backgrounds. Roberts was confirmed. Estrada was borked for bogus reasons — primarily a dispute over the White House’s decision to withhold the exact same sorts of documents that they are currently withholding regarding Roberts: memoranda from the nominee’s work in the Solicitor General’s office.

Republicans were able to make some hay out of the fact that Roberts was confirmed and Estrada wasn’t, despite their similar backgrounds. But let’s face it: nobody was really paying attention. This time, they would be.

No wonder the Democrats are making such a big deal out of those Solicitor General memoranda. They must see this possibility too.

If John Roberts is confirmed as Chief Justice without the release of any of his memoranda from the Solicitor General’s office, the Democrats would not have a leg to stand on in opposing Miguel Estrada. He can walk into his confirmation hearings and answer all the questions the exact same way Roberts answered his. How could Democrats possibly justify mounting a filibuster against Estrada, once they have confirmed Roberts?

The only possible argument Democrats would have is that Roberts has a couple of years of judicial experience and Estrada doesn’t. But the Republicans have a ready counterargument: Estrada would already have more judicial experience than John Roberts, if Democrats had simply confirmed him when he was nominated. But instead, Democrats filibustered him, in part because he was a Hispanic — a fact documented in a memorandum written by Democrat staffers, which said that Estrada was “especially dangerous” in part because “he is Latino.”

The staffer’s analysis was echoed by Senator Kennedy at the time: “We must filibuster Miguel Estrada’s nomination. . . . The White House is almost telling us that they plan to nominate him to the Supreme Court. We can’t repeat the mistake we made with [Supreme Court Justice] Clarence Thomas.” At the time, Stuart Buck noted that Kennedy didn’t say Scalia, only Thomas. As Buck argued, the only rational way to interpret Kennedy’s statement was: we can’t allow another conservative racial minority to be placed on the D.C. Circuit so that he could be plausibly nominated to the Supreme Court.

Republicans could have a field day with the staffer’s memo and Kennedy’s statement today. As Buck convincingly argued in his post, if Title VII applied to judicial nominations, Estrada would have had a convincing cause of action due to the disparate treatment of his nomination by Democrats. Republicans could say: we’re not going to let you be prejudiced against Miguel Estrada now because he hasn’t been a judge — something that happened only because of your previous demonstrable prejudice against him.

In any event, numerous people have become Supreme Court Justices (even Chief Justice) with no previous judicial experience, including the recently departed William Rehnquist. Other Justices with no previous judicial experience include Louis Brandeis, Byron White, Earl Warren, and Lewis Powell — and there are others.

I have pushed Miguel Estrada for Supreme Court Justice before, in this post. In my earlier post, I fully discussed Estrada’s background and qualifications, as well as the pathetically lame nature of the arguments against him. The post is rich with links, so consult that for any concerns you might have.

I’m telling you, the more I think about this, the more I like it. I am hereby making it my official recommendation to the White House: first confirm Roberts, and then nominate Miguel Estrada for the Supreme Court.

8 Responses to “Confirm Roberts, Then Nominate Estrada”

  1. Hmm. Well the only valid argument against Estrada is his lack of judicial experience. But as you point out he wouldn’t be the first person appointed to the SCOTUS with no judicial experience.

    Gawd would that ever be a battle. The Dems and the far left would be apoplectic. And Estrada is a good looking hispanic with good credentials and a compelling life story. He’d be the first hispanic SCOTUS appointment ever.

    The Dems would be screwed. They couldn’t do an under the radar filibuster like last time, they’d have to bork him out in the open. Right as the 2006 election season starts, and with him being a member of the largest minority in the country now.

    Wow. I wonder if Bush has the huevos to do it.

    Dwilkers (a1687a)

  2. Oh I really like this plan. Last night on the news, there was a group of Democrats who were trying to persuade Dem senators to vote for Judge Roberts.

    One of the protesters explained that they felt that they should have spoken up sooner, as they were still upset over what happened to nominee Miguel Estrada. He vowed that the Hispanic community would not be silent anymore.

    saveliberty (27112b)

  3. Michael Luttig, the Justice in Waiting since he got on the 4th Circuit.

    Besides, did you see the awesome job he did on Padilla this morning? It’s all we’ve talked about in chambers.

    Of course, Bush will screw us as usual.

    Angry Clam (a7c6b1)

  4. I certainly like the idea, but don’t agree that you need to wait for Roberts to be confirmed. In fact it would be even better if Roberts and Estrada were in the confirmation process at the same time and the democrats were forced to either block both nominees for not having access to SG documents (for which they would be severly punished politically by fair-minded voters) or to let both get a pass.

    Jeff Teismann (81aa80)

  5. Seems to me that the Democrats wouldn’t dare use no judicial experience as a reason to not confirm Estrada, since Chuckie Schumer himself suggested that Bush nominate someone outside the judicial realm. He said it wasn’t necessary that a Supreme Court Justice have prior bench experience.

    Jackie Warner (95d9f3)

  6. James Taranto has an alternative that is just as interesting as the Estrada nomination– He suggests Viet Dinh

    He explains
    Why Viet Dinh? He’s young: 37 to be exact. If he lives as long as William Rehnquist, he could still be on the court in 2048. He has a compelling personal story: born in Saigon, South Vietnam, in 1968, he came to America as a refugee at age 10 after his country fell to the communists. His experience in the Justice Department would give the Democrats a chance to highlight their compassion for terrorists, something Republicans would no doubt appreciate too.

    More at

    saveliberty (27112b)

  7. If Bush named eminently qualified federal circuit Judge Rogers Brown to replace O’Connor now, he would prove — once and for all — that neither he or the GOP “hates black people” as the demagogues on the Left charge.

    The Dems and the Left are SHAMELESSLY using Katrina in a last ditch desperate demagogic attempt to stop the current leakage of blacks to the GOP – which if it continues would doom the party to defeat after defeat for decades.

    reliapundit (1cf936)

  8. […] A quick aside from the prep for the Roberts confirmation hearing: Patterico and JP both have lengthy posts making the case for Miguel Estrada to be appointed into the currently vacant Associate Justice seat. They both make great points. […]

    Confirm Them » Estrada Back in the Mix (e203ab)

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