Patterico's Pontifications


Miguel Estrada’s Hilarious Statement on Rumors He Might Be the Next Solicitor General

Filed under: General — Patterico @ 6:00 pm

The National Law Journal reports:

Gibson, Dunn & Crutcher partner Miguel Estrada on Wednesday knocked down suggestions that he was in the running to be the next U.S. solicitor general, citing “the deterioration of the confirmation process over the years.”

In a statement emailed to The National Law Journal, Estrada said, “I would never accept a job that requires Senate confirmation or, for that matter, willingly place myself in any situation (e.g., a hearing room) in which convention requires that I be civil to Chuck Schumer.”


Estrada has good reason to be bitter. Nominated by George W. Bush in 2002 to be a judge on the D.C. Court of Appeals, he was a victim of Democrats who mounted a filibuster because they worried that the position would set him up to be a shoo-in as the first Latino Supreme Court justice. He finally gave up and became a partner at a top law firm, and nobody can blame him.

It’s good to see that he has a sense of humor about the current rumors that he would subject himself to Senate Democrats again.

[Cross-posted at RedState and The Jury Talks Back.]


More Stunning Hypocrisy from Harry Reid on Filibusters of Judicial Nominees

Filed under: General — Patterico @ 11:17 pm

No, keep reading; you haven’t heard this one yet. Revel in this delicious hypocrisy from Harry Reid:

Good morning. I’m Harry Reid from Nevada, the Democratic Leader in the Senate.

This weekend, spring has made it to Washington DC. From the window in my office in the Capitol, I can see down the Mall, past the Washington Monument and to the Lincoln Memorial. It’s a long way from my hometown of Searchlight, Nevada, and it’s quite a view. The famous cherry blossoms are in full bloom and the city is crowded with visitors — especially young people, here with their families or with their schools.

As the kids line up at the National Archives to see the original copies of the Constitution and the Bill of Rights, they’ll learn about “checks and balances” and “freedom of speech.” And when they’re done, I wish they would come down the street to the Capitol and teach some of what they’ve learned to the Congressional leaders of the Republican Party.

You see, in the past weeks, we’ve seen Republicans in Congress abuse their power in too many ways. We have a Republican leader threatening judges who protect our rights and corrupting our government by running roughshod over the ethics committee to protect himself.

Republicans are trying to increase their power even if it means ignoring rules that go back to America’s beginnings. They seem to think that they know better than our Founding Fathers. Somehow, I doubt that’s true.

In their latest move, President Bush and the Republican leadership are trying to ram through radical choices for judges who will serve a lifetime on the bench. They are trying to eliminate a two-hundred-year-old American rule that says that every member of the Senate has the right to rise to say their piece and speak on behalf of the people that sent them here.

This isn’t about some arcane procedures of the Senate. It is about protecting liberty and our limited government.

This isn’t about politics. In the past…two Democratic Presidents tried to take control of the judicial branch and Americans of all political stripes rightly spoke up to defeat those efforts.

It isn’t even about judges. The fact is that this President has a better record of having his judicial nominees approved than any President in the past twenty-five years. Only ten of 214 nominations have been turned down. And those ten had views that were totally out-of-touch with the mainstream values Americans share.

When it comes down to it, stripping away these important checks and balances is about the arrogance of those in power who want to rewrite the rules so that they can get their way.

It would mean that the U.S. Senate becomes merely a rubber stamp for the president.

It would mean that one political party – be it Republicans today or Democrats tomorrow – gets to have all the say over our nation’s highest courts.

It would remove the checks on the President’s power…meaning that one man, sitting in the White House, could personally hand out lifetime jobs to judges whose rulings on our basic rights can last forever.

That’s not how America works.

Here, in America, the people rule – and all the people have a voice.

Here, in America, our judges should be independent – not puppets dancing to the pull of one person in power or one political party’s agenda.

We cannot sit by and allow the corruption of America’s values in America’s Congress. The Republicans who run Washington should start using their power for the good of all Americans, not abusing it for their own benefit.

Our Constitution tells us that the courts should be free from political pressure and that our rights are protected by checks and balances.

Our children know that you can’t change the rules just to get your way. I think it’s time that Washington Republicans remembered those truths.

This is Senator Harry Reid. Thanks for listening.

Mad props to Morgen R. for that wonderful link. But please: don’t just read the transcript. Go to this link and listen to this mook solemnly intone these words. It really is the only way you get the full effect.

Isn’t that beautiful? The absolute professed devotion to principles, and the determined denial that it has anything to do with politics or judges, is not only classic hypocrisy of the first rank, but it also really helps put the lie to all the explanations we’re hearing today for why every Democrat on Earth has had a change of heart on this issue.

Now for the stuff you’ve already read and heard today — just in case any of you missed it. First, if you want some other juicy Harry Reid quotes on this issue, many are collected here (thanks to Hot Air). More analysis from Roger Pilon via Instapundit.

And now, of course, we have the Liar in Chief:

Obama 2005:

Obama 2013:

Between all this and the rank and laughable hypocrisy from the New York Times that I revealed earlier this evening, it is absolutely astounding that any thinking person would take any of these people seriously ever again.

AND NOW, FOR A SHORT AND JOYOUS THUMB-SUCKER ABOUT WHAT IT ALL MEANS: To me, this is liberating. I never believed in filibustering judicial nominees to begin with. Elections have consequences. Presidents deserve an up or down vote. The filibuster does not comport with the Constitution and it never did. We were fools to let the Democrats do it. Fools. Now, it’s never going to happen again. It is good and damned well never going to happen to a solid Republican nominee like Miguel Estrada again. Ever.

And those people who fretted about how they would take it from us if we took it from them? Guess what? We didn’t take it from them and they still took it from us. So what good did that achieve? Huh?

And please. Don’t assign any weight to the notion that the filibuster is still good for Supreme Court nominees. That’s the same sucker’s bet that you guys took when you let Democrats filibuster Miguel Estrada and try to filibuster Alito. You know what? The filibuster is still there for Supreme Court nominees . . . until the Democrats decide that it isn’t. And then, it won’t be. Read that Harry Reid quote again, and tell me that you think there is an ounce of principle on the Democratic side in the entire Senate. The second they decide they need to take away the filibuster for a controversial Supreme Court nominee, they will.

So rejoice in the disappearance of the filibuster on judicial nominees. It never should have been used to begin with, and it will never be used again, and good riddance. It may hurt a little in the short term, but in the long term, this is better for us.

We are going to ram this down their throats one day. Let me say that again. We are going to ram it right down their throats. And man, is that ever gonna feel good.


The Prediction Stands: Dems Will Filibuster Bush’s Second Nominee — And Will Therefore Vote for Roberts

Filed under: Judiciary — Patterico @ 4:30 pm

I have predicted all along that the Democrats would not filibuster President Bush’s first Supreme Court nomination, no matter who it was — but would filibuster the second one . . . no matter who it was.

I still believe that is their plan. In order to execute that plan, they may decide that they need the apparent credibility that comes with a vote for John Roberts — a candidate who is clearly unobjectionable and will be confirmed without breaking a sweat.

The downside for them is that voting for Roberts opens them up to the gambit I mentioned here the other day — it ties their hands to a significant degree in raising objections to a possible Miguel Estrada nomination.

The Democrats’ principal objections to Estrada were: 1) the Bush Administration’s refusal to release Solicitor General memos, and 2) Estrada’s alleged refusal to provide details on his views. But Roberts did not release Solicitor General memos, and Estrada could easily give answers with the same level of detail as Roberts. Given these ready responses to Democrat objections, and the similarity of Estrada’s resume to that of Roberts, any filibuster of Estrada by Democrats runs the risk of looking like an unfair blackballing of Estrada due to his Hispanic heritage.

I think Sen. Schumer, for one, has decided that this is a risk that he is willing to run, for two reasons.

First, Judge Roberts has set a very, very high standard for the next nominee. No matter how well the next nominee performs, he or she will almost inevitably fail to pull off a performance as impressive as that of Judge Roberts. Estrada is a bright man, but hardly any candidate has performed as well as Roberts in recent memory. Democrats can easily use this to justify their vote for Roberts, and say that the new candidate just didn’t impress them as much.

[UPDATE 9-17-05: This is borne out by an article in today’s New York Times, which quotes Schumer as saying: “Roberts set an awfully high bar in terms of intellect and ability to answer questions, which is going to be awfully hard for the next nominee to match . . . Roberts gained a lot of good will because of his intellect.”]

Second, the availability of documents from Roberts’s service in the Reagan Administration gives Democrats an argument (albeit a lame one) that they have more information about his views than they have about Estrada. Schumer alluded to this in remarks from Thursday’s hearings:

In some cases, like Miguel Estrada’s nomination, we had no knowledge of his views so we couldn’t vote. But here there’s clearly some evidence.

That was a warning shot — and it was evidence that Schumer is seriously considering voting for Roberts.

If he does that, he is going to have the interest groups howling with fury. And Schumer, as much as any Senator, is a captive of the abortion lobby and PFAW. The only thing that will assuage these people is a promise to filibuster the next candidate, unless he is to the left of Stephen Reinhardt.

For these reasons, I am going to sign on to Dafydd ab Hugh’s recent prediction: Roberts will get passed on to the floor with the votes of every Democrat except for Teddy Kennedy, who is so apparently upset about Roberts’s Reagan-era memos on the Voting Rights Act that he will never vote for Roberts, even though it would be the strategically smart thing to do.

The other Democrats will hold their noses and vote for Roberts. And they will say next time around: I am not automatically filibustering every Supreme Court candidate! But this nominee [whoever it is] is so out of the mainstream I have no choice!

You heard it here second.

UPDATE: Democrats, listen — even the Washington Post is editorializing in favor of Roberts’s confirmation.

UPDATE x2: I see Biden as the second most likely vote against Roberts.


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.


A Halbig F*cking Deal: The Triumph of Textualism Over the “Intent” Argument That Leftists Hope Will Save ObamaCare

Filed under: General — Patterico @ 12:00 am

Last week, citing a post by Allahpundit, I mentioned the case that could kill most ObamaCare subsidies: Halbig v. Sebelius. I have now listened to the oral argument (.mp3 audio download) from the appeal in the D.C. Circuit Court of Appeals, and I am now convinced that the judges on the panel will rule 2-1 against Obama. As the title implies, this is a Big F*cking Deal, and I’d like to go through the highlights of the oral argument to explain why I think so.

A decision could come down any day now, by the way:

To review from my original post on the matter: The law’s plain language says subsidies are available only when a health plan is purchased on an exchange “established by the state under section 1311.” 34 states refused to establish an exchange, after which the HHS Secretary invoked her authority to set up federal exchanges under a different section: section 1321. Then the IRS promulgated a rule that said exchanges set up by the Secretary under section 1321 were actually exchanges “established by the state under section 1311.”

The plaintiffs in the lawsuit say: “state” does not mean “federal government.” The exchanges established by the HHS Secretary under section 1321 are not “established by the state under section 1311.” Making the point even clearer: a “state” is defined in the ACA as “each of the 50 States and the District of Columbia,” they note, and not the federal government.

The Obama lawyers say: oh, come on. Don’t look at the plain language of that one provision. You gotta look at the whole law and the intent of Congress.


That sets the stage for the oral argument, and while I could give you a blow by blow, I want to concentrate on a couple of points that jumped out at me as significant. The plaintiffs, of course, rely on the plain language of the provision, which is the key to the outcome. But they also argue that Congress intended to limit subsidies to plans bought on state exchanges. The main argument made by the plaintiffs along these lines goes like this: Congress limited subsidies to plans bought on state exchanges in order to provide the states with an incentive to create their own exchanges. An interesting exchange along these lines was already reported in a Federalist Society blog post:

Judge Randolph seemed inclined to side with the plaintiffs, while Judge Edwards heatedly disputed with both the plaintiffs and Judge Randolph.

“Your argument makes no sense,” Judge Edwards said. “Who cares who sets up the exchanges?”

Judge Randolph retorted: “Ben Nelson.”

Mr. Nelson was a Democratic senator from Nebraska at the time the Affordable Care Act passed, and he was viewed as the key swing vote — and was seen as wary of expansive federal control of the health care system. . . .

Indeed. Judge Randolph makes a great point: the Democrats needed Ben Nelson’s vote, and he at least purported to be in favor of federalism. To pacify him, the law was set up so that the states would be the ones, in the first instance, that would supposedly set up the exchanges. Indeed, the plaintiffs argue, Congress apparently expected every state to go along — why turn down free money? — just like Congress was so confident that states would accept Medicaid expansion that they didn’t even provide subsidies for people making less than the poverty level, because they assumed (wrongly) that every state would expand Medicaid for those people.

When Judge Edwards argued that absolutely nobody believed that this would be the result, and that this was a recently concocted argument, Judge Randolph noted that Investors’ Business Daily pointed it out in a piece in 2011 (which is admittedly after the passage of the law. You can read that piece here).

There is no question where Judge Edwards stands, as he called the arguments of the plaintiffs “preposterous.” There is also no question that Judge Randolph will vote that there are no subsidies under the federal exchanges; as he said: “If the legislation is just stupid, I don’t see that it’s up to the court to save it.” That leaves Judge Griffith as the swing vote here, and in over an hour of arguments, I didn’t hear him say one thing supportive of Obama’s position. One point you may not have realized: Griffith is the judge nominated by George W. Bush after Miguel Estrada was filibustered into frustrated submission and withdrew his name from consideration.

The most important point I heard Griffith make during the whole argument was this: the states can still set up exchanges after this ruling. The states will have to explain to their citizens that the subsidies they thought they were going to get, they actually won’t get — only because the state declined to establish an exchange. That will put tremendous pressure, not just on Congress to amend the statute (which likely won’t happen), but also on individual states to establish their own exchanges (which probably will happen in several of the 34 states that have to date failed to establish an exchange).

In other words: Judge Griffith will argue that he is not preventing people from getting their subsidies. The states are, by not setting up the exchanges — which they can still do.

(It should be noted that, as the subsidies are removed, many people will, for the first time, be legally excused from the mandate. That’s because the law contains a provision that the penalty, er, tax, will not be imposed on people who can’t afford insurance — defined as people who would have to pay more than 8% of their income for health insurance. As the subsidies disappear, this group of people will greatly expand — removing even more revenue for insurers, and potentially causing the structure of ObamaCare to collapse.)

BOTTOM LINE: After hearing the entire argument, I am convinced that we are about to see a 2-1 ruling against Obama from this panel.


Even if the panel rules the right way, as I expect they will, there is a long road to a final decision, likely beginning with an en banc rehearing:

If the three-judge panel rules against federal Obamacare subsidies, sources close to the case say the administration is very likely to request an en banc ruling — a re-vote taken by the full D.C. Circuit. The math of the overall bench is friendlier to the White House: 7 judges are Democratic appointees and 4 are Republican appointees. Four of the judges were placed by President Barack Obama himself, all during his second term.

Any time you forego plain language in favor of rootless searches for legislative “intent,” you give dishonest leftists an opening. And the brute politics of the makeup of the full en banc panel — together with the malleable “intent” standard that gives those judges a warrant to write their own preferences into the law, and the text of the statute be damned — make a pro-Obama ruling from the en banc court seem likely.

Of course, the matter will likely eventually end up in the U.S. Supreme Court, unless they chicken out and refuse to hear it, which seems to me unlikely. I like our chances there better. Kennedy, often a squish, was a solid vote against ObamaCare in the previous major ObamaCare decision. I know you guys are skeptical about what John Roberts would do, but I think there is a better than even chance that he would choose the textualist approach.

In fact, if the Justices were to be honest, this would be a unanimous decision against Obama in the Supreme Court. Jonathan Adler has collected some recent quotes from the Supreme Court on rewriting statutes to reflect “intent” — and even the lefties are not supportive of the idea . . . in the right case. Justice Kagan said in one opinion: “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS’s] words) Congress ‘must have intended’ something broader.” But that was said in a boring lawsuit about American Indian tribal sovereign immunity. Somehow, I think Kagan will find a different principle applies when Obama’s health care subsidies are at stake.


Once conservatives understand the issues at stake in Halbig, I believe that will be the death knell for the theory that says judges should choose unexpressed intent over the plain language of a statute — at least for conservatives. Choosing unexpressed intent over plain language is how leftists have undermined the rule of law in this country for decades. It must stop. The more conservatives awaken to the issues in Halbig, the better chance we have to make it stop.

Appealing to Congress’s subjective “intent” is the subsidies’ only hope for survival. An appeal to “intent” is the only method leftists have available in this case to twist the words to their purpose. A textualist approach means most ObamaCare subsidies will be found unlawful. There is zero debate: a plain language, textualist approach in this case means Obama loses. That’s why every Democrat rejects a plain language approach in this case, and tortures the text to argue that Congress’s “intent” was to provide subsidies for all. As one of the judges said at oral argument, the legislative history is a “wash” — which at least gives Democrats a fighting chance to argue for their version of “intent.”

Notably, Nancy Pelosi and others have filed a brief (.pdf) in Halbig saying: we really meant to provide subsidies on federal exchanges. If a court elevates subjective intent over the plain language of the law, that court might well give great weight to Pelosi’s brief.

But even if Pelosi is telling the truth, that does not end the matter. Even if we foolishly looked only to “intent” and not to the plain language, the “intent” of everyone who voted would be relevant, I would think. And there’s the rub. Pelosi might have “intended” one thing, and Ben Nelson another. This shows why trying to divine legislative “intent” is a fool’s errand. As I have argued before, legislative intent should not be a judge’s focus in interpreting a law. For one thing, you can’t ever discern a collective “intent” from a collection of different politicians, except by examining what they actually said. That’s why the only reasonable way to resolve the issue is to look at the plain language of the law, and enforce that.

Forget “intent.” Intent does not matter unless it is conveyed in the language of the law. Period. This isn’t just about one result, however important that result is. Original understanding alone preserves the rule of law.

IF YOU WANT TO GEEK OUT: The law is here. Jonathan Adler’s initial post on this is here, and a follow-up is here. The lower court decision ruling for Obama is here (.pdf). Pelosi’s brief is here (.pdf). Adler and Cannon’s amicus brief is here (.pdf). A great Federalist Society blog post on the oral arguments is here. Finally, the oral arguments can be heard here. If all that is not enough, there is a comprehensive list of resources here.

P.S. One more point: properly understood, the IRS rule here is just another example of executive overreach. Congress didn’t make subsidies available on the federal exchanges, so the IRS simply wrote a rule saying they are. This must be rejected — and I think the court will.


Reid to Go Nuclear

Filed under: General — Patterico @ 7:41 am

Harry Reid is once again talking about going nuclear:

For at least the third time this year, Senate Democratic Majority Leader Harry Reid is threatening the “nuclear option” to filibuster reform after he extracted minor victories in January and July employing the same tactic.

Sen. John McCain (R-Ariz.) told TIME that he has been in discussions with the Democratic leadership, a role revisited multiple times from at least 2005 through this year. Reid rejected an offer by McCain Wednesday, according to an aide familiar with the discussions, since the proposal did not allow the Senate to move forward to allow a vote on all three of President Obama’s nominees to the U.S. Court of Appeals for the D.C. Circuit. Over the past three weeks, Republicans have filibustered the nominations.


Mr. Reid:

Y’all filibustered Miguel Estrada. I for one will never forgive you for it. Live by the sword, die by the sword. I argued against the filibuster when we were in the majority. Those (like me) who argued against the filibuster of judicial nominees lost. Now you have to live with the consequences of what you did.

Take away this tool from us, and we will take it away from you. There will be no more playing by different rules when we are in the majority again. This is your final warning. That is all.


Cruz: They Oppose Rubio Because He’s Latino. Patterico: You Bet They Do — And Here’s the Evidence

Filed under: General — Patterico @ 7:25 pm

Democrats?? Doing race-based attacks on Republicans?!?!

Ab-solutely (via Hot Air):

Sen. Ted Cruz says some of the attacks on fellow Republican Sen. Marco Rubio by Democrats are motivated by race. Cruz said today the fact that Rubio is a Republican Latino poses a threat to political adversaries. “I think Democrats and the media are afraid of Marco Rubio because he is a smart, intelligent, conservative Hispanic. And they are looking for any excuse they can to attack him, because that threatens them,” Cruz told reporters during a tour of a Texas gun manufacturing plant north of Austin. “Look, he took a drink of water in a speech. And it dominated the news for days with one network saying it was a career ender.”

Cruz said the criticism of Rubio’s GOP response following last week’s State of the Union was about more than his being a promising young Republican. “It’s not just a promising Republican. I think the Democrats view Marco Rubio as a particular threat because of his background, his life story. I think it they believe it is in their interest to inflict as much damage as possible and blow things wildly out of proportion.”

Cruz is right. And here’s how I know that.

The first year I blogged, 2003, I noted a Wall Street Journal expose of Democrat strategy memos from the time when Democrats were in charge of the Senate Judiciary Committee (as they are again). The link to the WSJ piece is now broken, but you’re in luck, because I quoted the most relevant memo — and the link to my post still works. Here is a quote from a staffer to Dick “Dick” Durbin regarding a scheduled meeting with liberal interest groups. Note well, please, how they refer to Miguel Estrada:

The groups singled out three–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.

He’s dangerous, “Dick” Durbin was told, because he is Latino.

You got that?

And, as I am sure you will remember, Miguel Estrada was filibustered when George W. Bush attempted to place him on the Court of Appeals for the District of Columbia, long seen as a launching pad for the Supreme Court. I fought the filibuster of Estrada tooth and nail (keep scrolling), but I am just one blogger, not quite able on my lonesome to stem a national tide of cynical race-based Democrat political maneuvering.

And Estrada withdrew because he could not put his life on hold for years. And Sonia Sotomayor became the first Latino/a on the High Court. And there was much rejoicing.

So, when Democrats denounce Cruz — that awful McCarthyite! — for daring to suggest that Democrats might be targeting Rubio because he’s Latino? When they do that, you look them in the eye, and you say: “Oh yeah? What about Miguel Estrada?!?!”

And when they give you a blank look, like they don’t have the slightest idea what you’re talking about . . . you read them this post.

UPDATE: Thanks very much to Instapundit for the link.


Cornyn’s Comments on “This Week” Today

Filed under: — Patterico @ 2:45 pm

This page contains every single comment made by John Cornyn in this morning’s appearance on “This Week.” The full transcript is here.

[Responding to Chuck Schumer’s suggestion that diversity is important]: Well, of course, George, the concern is that above the Supreme Court it says “Equal justice under law.” And it’s doesn’t — shouldn’t make any difference what your ethnicity is, what your sex is, or the like.

We would also hope that judges would be, you know, umpires, impartial umpires. And, you know, the focus shouldn’t be on the umpire and what their sex or gender is, or their ethnicity. It ought to be on the game. And here it’s on the rule of law, I agree. But it’s not just her statements. It’s the New Haven firefighter case where she apparently ignored legitimate constitutional claims of a number of firefighters, including an Hispanic who claimed discrimination on — because of the color of their skin. And now the Supreme Court, I think, is poised to perhaps even reverse that.

. . . .

[Responding to Stephanopoulos’s question about the Tom Goldstein analysis of Sotomayor’s rulings in discrimination cases]: Well, George, what you’ll see from our side of the aisle during these hearings is members of the Judiciary Committee and senators who are not willing to prejudge or pre-confirm any nominee, but are committed to a fair process, and one that allows Judge Sotomayor to explain what the context is for all this and what her true feelings are.

I might say that’s in stark contrast to the way Miguel Estrada was treated, somebody who was on a path to become the first Hispanic Supreme Court justice, and Clarence Thomas, somebody with a compelling story like Judge Sotomayor, but who was subjected, at least in his words, to a high-tech lynching.

So I think the most important thing that can happen here is, everybody take a deep breath, calm down. Let’s take our time, let’s review those 17 years of federal judicial history, and let’s ask the nominee some questions in a dignified Senate process.

. . . .

[Responding to Sen. Schumer’s disingenuous argument that Miguel Estrada failed to answer questions]: Well, George, I think — I take a contrary view, as you might imagine. I think this is pretext. I mean, Miguel Estrada immigrated from Honduras. He couldn’t speak English, when he was 17 years old, came here, graduated from the two top schools in America, and rose to the very top of the legal profession. And yet, he was filibustered by Democrats who denied an up-or-down vote in the United States Senate.

Now, can you imagine if the shoe were on the other foot today?

. . . .

[Responding to a question regarding whether the GOP will filibuster Sotomayor]: Well, I think it’s really premature to say that, or to speculate. That’s why I . . . I’m not willing to judge one way or the other, George, because frankly, we need to not prejudge, not pre-confirm, and to give Judge Sotomayor the fair hearing that Miguel Estrada, and, indeed, Clarence Thomas were denied by our friends on the other side of the aisle.

. . . .

Well, there are a lot of important questions. We’ve talked about some of them this morning. We need to know, for example, whether she’s going to be a justice for all of us, or just a justice for a few of us. And, you know, this promise of equal justice under the law is not just a motto emblazoned above the Supreme Court, this is the standard. And indeed, by ignoring a genuine constitutional issue about reverse discrimination in the New Haven firefighter case, you know, the comments she made about the quality of her decisions being better than those of a white male — I mean, we need to go further into her record to see whether this is a trend, or whether these are isolated and explainable events.

Cornyn never “pledged that he and other Republican lawmakers would probe deeply into Sotomayor’s past comments and rulings to see if her heritage colors her ability to make fair decisions.” That is an outright fabrication by the Los Angeles Times. The focus was on her statements and rulings, not on her heritage.


Beldar Reviews “Supreme Conflict”

Filed under: General,Judiciary — Patterico @ 12:01 am

Beldar has a positive review of Jan Crawford Greenburg’s book Supreme Conflict.

It’s interesting to put Beldar’s review and mine side by side. We were antagonists in the Harriet Miers debate, and both felt strongly about it. Beldar still carries the psychic wounds from that debate, whereas I consider it a proud moment for this blog, and I’m very pleased with the result.

But both Beldar and I were struck by similar passages in the book, such that we both noted them in our respective reviews. Both of us noted Greenburg’s citation of Harriet Miers’s ironic statement: “I think the blogs will be really important.”

And both of us were struck by the report that President Bush made the final call to axe the Miers nomination. I had actually hoped that this news would provide some comfort to those of Beldar’s mindset. As I said in my review:

Perhaps the “trust Bush” crowd would have taken the decision more easily if they had known that Bush was behind the decision for Miers to withdraw — and that it wasn’t wholly motivated by conservative opposition (though that opposition certainly had much to do with it).

It doesn’t seem to have been quite the comfort I had hoped it would be. Beldar says:

And I guess it makes me feel marginally better. I might have been a dim and unsuccessful candle against a hurricane, but it wasn’t the hurricane that ended up wrecking the ship, no matter how smug the hurricane was afterwards.

I think I am part of the smug hurricane Beldar is referring to. Oh, well.

It would be nice if Beldar could overcome his resentment of the opposition to Miers long enough to follow this syllogism:

  • We must trust Bush on his Supreme Court nomination decisions.
  • Bush decided to end Harriet Miers’s nomination.


  • We must trust Bush on his decision to end Harriet Miers’s Supreme Court nomination.

Anyway. Enough of that.

Both Beldar and I were struck by the way Greenburg showed that Justice Thomas is no lackey of Justice Scalia. We were both amused by the personal stories about John Roberts’s travails in dealing with the nomination process.

And we were both generally impressed with the quality of the book. And that’s enough. This is one area where I choose to emphasize our areas of agreement.

P.S. Speaking of Ms. Greenburg, she has a new post at her Legalities blog. It contrasts the current Harry Reid-led all-night session with the similar tactic pulled by Republicans during the debate over certain of President Bush’s nominees. This passage ends with a funny line:

Talk about the shoe being on the other foot.

Senate Democrats are hauling out cots and preparing for an around-the-clock session tonight to bash Republicans for blocking a vote on a proposal to withdraw troops from Iraq. They’re solemnly intoning that the all-nighter is a critical way of calling attention to obstructionist Republicans who are blocking the will of the majority by refusing to end the debate and vote. And the Republicans are blasting right back that the all-nighter is nothing more than a stunt that will solidify their resolve.

Sound familiar? It is. We heard it all in 2003, when Republicans (then in control of the Senate) used a similar ploy—right down to the cots–against Democrats who were blocking President Bush’s judicial nominees. Ineffectual Republican leaders had sat by for months while energized Democrats picked off Bush’s judges—until the Big Night when they had the sleepover on the Hill. They hammered those irksome Democrats in the minority who were mounting the first-ever filibuster of appellate court judges.

And then everyone went home, and Democrats kept their resolve. The filibuster would prove enormously effective and keep some of Bush’s nominees—Estrada, Kulh, Owen, Brown–from subsequently making it to the Supreme Court when the President had a chance to fill two vacancies.

But of course, in 2003, Republicans and Democrats had a different spin on the whole all-night session/filibuster thing. It’s almost like we’re looking at a big cartoon with talking points in those quote balloons above the senators’ heads. Someone sneaked in and switched the quotes all around.

Heh. Indeed.

P.P.S. A sentence above originally read: “It contrasts the current Harry Reid-led all-night filibuster with the similar tactic pulled by Republicans during the debate over certain of President Bush’s nominees.” Of course it’s the Republicans filibustering, and I knew that, but had a temporary brain freeze. The word “filibuster” has been changed to “session.”


Giuliani to Unveil a Quality-Filled “Justice Advisory Committee”

Filed under: 2008 Election,General,Judiciary — Patterico @ 6:17 pm

FOX News reports:

GOP frontrunner Rudy Giuliani will unveil his “Justice Advisory Committee” this week on a two-day swing through heavily Republican western districts of Washington, D.C., home of the first presidential caucuses in 2008.

The committee signals an important moment for building his relationship with social conservatives a he tries to convince skeptical Iowans he can compete seriously in the caucuses.

Former U.S. solicitor general under President Bush, Ted Olson, will chair the panel. Former Bush administration Deputy Attorney General Larry Thompson and filibustered judicial nominee Miguel A. Estrada will be among the “who’s who” of conservative legal and judicial advisers to Giuliani.

I like the sound of that. Regular readers know I am a big fan of Estrada’s, and I like Ted Olson quite a bit as well.

Pejman sums up my feelings well:

This is no doubt reassuring from the standpoint of conservatives. It would be especially effective if Giuliani used the formation of this committee to announce that whatever his personal views concerning hot-button legal issues like abortion, he would be willing and eager to defer to a federalist solution or approach to resolving those problems. Such an announcement would cause even people who disagree with Giuliani’s personal views to respect and appreciate his legal stance and would perhaps draw more support for the former Mayor in his bid for the Republican Presidential nomination.

In other words, it’s a good start — but I’d like to see more of a commitment to judicial conservatism from the horse’s mouth. Committees are great and all — and I like the names on this list — but they’re, uh, committees. Giuliani needs to speak out about what his criteria would be in selecting Justices. It’s my biggest reservation about the man.

This is a small step towards addressing that reservation, though, and I’m mildly encouraged.

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