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Judging Judges

September 26, 2002 at 12:00 AM EST
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RAY SUAREZ: Another embattled judicial nominee has his day before the Senate.

RAY SUAREZ: 41-year-old Miguel Estrada could become the first Hispanic judge on a federal appeals court, that is if the Senate Judiciary Committee, and then the full chamber, approves the President’s nominee. But like recent predecessors, Mr. Bush has seen his choices face stiff opposition.

The committee rejected Judge Priscilla Owen, Democrats called her a far-right nominee; it’s delayed the fate of Law Professor Michael McConnell on the abortion issue; and it voted down Judge Charles Pickering, whose opponents call him insensitive on civil rights. Today, Estrada’s fans, and his foes, packed the committee hearing room.

A graduate of Columbia and Harvard Law School, Estrada edited The Harvard Law Review, and then went on to clerk for Supreme Court justice Anthony Kennedy. In the government, he worked for the U.S. Attorney and the solicitor general, the government’s lawyer at the Supreme Court. Republican Orrin Hatch said it’s clear Estrada’s up to the task.

SEN. ORRIN HATCH (R-Utah): Mr. Estrada has argued 15 cases before the United States Supreme Court, and is today one of America’s leading appellate advocates, and he’s won most of them. It is evident that Miguel Estrada is here today for no other reason than this: He is qualified for the position for which President Bush has nominated him.

RAY SUAREZ: But Democrats, like Dianne Feinstein, noted Estrada has no record as a judge, and no paper trail. To get a better feel, she asked him specifically about Roe vs. Wade.

SEN. DIANNE FEINSTEIN (D-Calif.): Do you believe that Roe was correctly decided?

MIGUEL ESTRADA: My view of the judicial function, Senator Feinstein, does not allow me to answer that question. I have a personal view on the subject of… of abortion. I view our system of law as one in which both me as an advocate and possibly if I am confirmed as a judge have a job of building on the law that is already there and not to call it into question. I have had no particular reason to go back and look at whether it was right or wrong as a matter of law as I would if I were a judge that was hearing the case for the first time. It is there. It is the law as it has subsequently been refined by the Casey case. And I will follow it.

SEN. DIANNE FEINSTEIN: So you believe it is settled law?

MIGUEL ESTRADA: I believe so.

RAY SUAREZ: Wisconsin Democrat Herb Kohl asked about one particular interest group. Among Hispanic groups, Estrada is supported by the U.S. Hispanic Chamber of Commerce and the Latino coalition, but opposed by the congressional Hispanic Caucus and the Puerto Rican Legal Defense and Education Fund. The Puerto Rican group met with Estrada earlier this year, and called him a number of things.

SEN. HERB KOHL (D-Wisc.): “Contentious, confrontational, aggressive, and even offensive.” Why do you think they said these things about you?

MIGUEL ESTRADA: One of the individuals in the meeting was very frustrated by what I thought was my inability to give very expansive views in certain areas of law that are of interest to the fund.

He expressed the view; actually, a series of three related views which went something like this: Number one, “You, Mr. Estrada, were nominated solely because you’re Hispanic.” Number two, “That makes it fair game for us to look into whether you’re really Hispanic.” And number three, “We, having been involved in Hispanic bar activities for lo these many years, are in a position to learn that you’re not sufficiently Hispanic,” to which my response was, and I felt that very strongly, to point out that the comments were offensive, and deeply so, and bone-headed, and they’re still offensive.

RAY SUAREZ: As for the interest groups opposing Estrada, Hatch had these harsh words.

SEN. ORRIN HATCH: The extreme left-wing Washington groups go after judicial nominees like kids after a pinata. They beat it and beat it until they hope something comes out that they can then chew and distort.

RAY SUAREZ: Estrada must win at least one Democratic vote on the 19-member panel to send his confirmation to the Senate floor.

RAY SUAREZ: We pick up the debate over the politicization of judicial nominees with two people very familiar with the process. Eleanor Acheson spearheaded judicial nominations for the Clinton administration as Assistant Attorney General for Policy Development. And C. Boyden Gray was White House counsel during the first Bush administration. By all accounts, this young man is an academic star and a very able lawyer but, C. Boyden Gray, he’s not just being waved through. Why not?

C. BOYDEN GRAY: Well, Senator Schumer was very candid about that this morning and he’s been candid all along. He believes that ideology should be balanced on all the courts to reflect his view of the population at large and he believes that for this circuit, only people he will confirm are Democrats because right now the Republicans control more seats and more slots than the Democrats do.

He’s quite candid about it. He has no quarrels with Estrada’s ability, his temperament, his outlook generally about the law, his analytical ability. It’s only a question of his views as viewed by Senator Schumer. And he’s asserting the right as one Senator to determine who the full Senate will vote on.

The problem that many of us have with that is the Constitution assigns this responsibility to the president. If the full Senate, all 100 Senators want to reject this nominee for whatever reason, and you could never figure out why 100 Senators voted as a group, but if the full Senate wanted to reject him, I don’t think anyone could have a quarrel with that.

But what people do quarrel with is one Senator from New York determining the make-up of the federal bench for the entire United States.

RAY SUAREZ: Eleanor Acheson, when you look at what went on in that hearing room today, what do you see?

ELEANOR ACHESON: Well, I think I see something slightly different than Mr. Gray. I think Senator Schumer has done the process a great favor in bringing out truthfully what has been going on for years but more behind the scenes as he said when he first wrote an op-ed piece about this and when he’s conducted testimony on the role of ideology and judicial philosophy in appointments.

RAY SUAREZ: What was it he said that was going on behind the scenes?

ELEANOR ACHESON: That the president made these judgments when he chose the people to send forward to be considered and then to be nominated, that the senators made these judgments behind the scenes, that interest groups on both sides made these judgments but when they got to the hearing room, when the nominee came into the hearing room, everybody pretended that nobody was making these judgments.

Inquiry toward the substance of a nominee’s philosophy, judicial ideology, whatever you want to call it, were met, as we just saw on the set-up piece, with what Mr. Estrada said and in all fairness the nominees in the Clinton administration said this as well, which the senator, I believe, an inquiry into my… my personal judicial philosophy about that point is really not on point. I think what Senator Schumer has said is not I’m not going to support somebody who is not a Democrat for the United States Court of Appeals for the District of Colombia.

I think what he said about that court in particular, this is a national court. It’s a very important court. This is a court from which at least three people sitting on the Supreme Court have come. It’s a place to which presidents look for Supreme Court nominees as well as in other places. It decides, unlike the other circuit courts, cases of national impact in all sorts of very important policy ways about what the federal government can do and cannot do.

It’s not so much that Miguel Estrada is appointed by President Bush. It’s “let’s understand what Miguel Estrada thinks particularly in the case of that court about the role of the federal government as a regulator, as, you know, the body that puts out regulations that control, say, all our environmental laws, that limits property and the use of property and things like that.”

These are very important questions. And I think what Senator Schumer has done is to say, “let’s get into that.” Actually the McConnell hearing was one of the most illuminating things that I think we’ve seen in a long time because Professor McConnell both in his capacity as a law professor and also as a litigator, he is not just a law professor.

He has litigated many cases including before the Supreme Court, he was fulsome about what his personal judicial philosophy is, what his ideology is, what his views are about articles of the Constitution, about rights under the Constitution and not under the Constitution.

And I think everybody understands where Professor McConnell stands. There will be some opposition to him but it looks to me like he will get through. I think what we’re learning is inquiry into judicial philosophy is not necessarily a bad thing. Indeed it may be a very good thing.

RAY SUAREZ: Let me turn that back to Boyden Gray at this point. You heard Eleanor Acheson talking about how this is a legitimate part of the process, that before people get sent on to the bench we should really know about their past, what they’ve said, what they’ve written, what makes them tick.

C. BOYDEN GRAY: I don’t have any problem myself with general judicial philosophy and surely they could have asked questions of Miguel Estrada today about that. I don’t think they asked many questions, in fact, they had a whole day to do it. I think it’s very clear he has a more conservative cast of mind than someone that President Clinton would have nominated.

But I don’t think that’s the problem. If he were asked a specific case, he would decline to answer. And he should decline to answer. Lincoln said we should not ask nominees for the bench their views on cases and they should not answer. And should they answer, we should despise them for it because it would threaten the independence of the judiciary and of that individual to give predisposition on a particular matter.

What is involved here is not a question about his ability. It’s a question of his cast of outlook which is clearly known. The senators don’t like it. They think he’s too conservative. They think the president doesn’t have the right to do this. So they’re rejecting the opportunity for the full Senate to vote on it.

RAY SUAREZ: Let’s talk a little bit more about the process. What’s changed about how someone like Miguel Estrada has to get ready for this part of his procession to a job on the federal bench? What’s going on inside the White House?

C. BOYDEN GRAY: I don’t think what’s going on inside the White House is any different than what went on when I was responsible for this or perhaps even when Eleanor was responsible for it. What’s different is the Senate, now the Senate Judiciary Committee as evenly as you can divide is asserting the right to screen on ideology.

This has never happened before. Oh, sure, I’m sure Eleanor could give you examples of the Republican Senate bad mouthing certain of their nominees and giving a hard time to them but at the end of the day, President Clinton got his share of 190 for four-year term, 380 for eight-year posting. He got most of his judges.

Eleanor did a very good job. She got most of what she wanted and what the president wanted. The ninth circuit is 17 to 7 Democrat over Republican. I think every single one of President Clinton’s nominees for the ninth circuit, for example, were confirmed. But now the Senate Judiciary Committee is saying we have the right to screen for the entire Senate.

Because we think Miguel Estrada, as qualified as he may be, is too conservative in our view, whatever that view is, we’re going to reserve the right to reject him because there should be more, quote, balance on the DC Circuit. Sure the DC Circuit is an important court. It’s also quite restrained in the number of cases it gets. It will probably never get a case on abortion. It will probably never get a case on school prayer.

What it gets are cases from the agencies, the FCC, the FEC, the EPA, the FDA where the judges are constrained to defer to the judgment of the agency and ultimately to the judgment of the Congress. The court is quite bipartisan. I think each judge would take great umbrage on this court, which I know fairly well, would take great umbrage on the notion that they vote party line or ideology. If you were to ask them they would take great umbrage at the suggestion that Senator Schumer made that somehow it is a politicized court, great umbrage.

RAY SUAREZ: But does a nominee now have to be prepared to ask different kinds of questions to be grilled in a way that perhaps just wasn’t part of the whole package during the first years of the first Bush administration let’s say?

ELEANOR ACHESON: Well, Boyden can speak to the first years of the Bush Administration I’m sure with more intimacy that I can. But I actually think that things on the part… the burden on the nominee and the administration putting the nominee forward hasn’t really changed. What has happened is it’s come out into the open.

And the good news is that finally these people… it’s not only come out in the open. It’s come out in the open at a hearing. One of the things that I would say is it is true, as Mr. Gray says, that we got lots of people through, but it was a fight every step of the way and there were many, many, many people who not only never got through, they never had a hearing.

There were two or three nominees for the Fourth Circuit who were nominated– that’s the North Carolina and that very important circuit– including two African-American nominees who were nominated each of them twice who never got a hearing. Two Hispanic nominees from Texas for the Fifth Circuit never got a hearing. Hispanic nominee for the tenth circuit from Colorado never got a hearing.

I mean I can go on and on, but I think the difference here– and Senator Leahy is to be commended as the chairman– is that he is giving people hearings, he is moving it out into the open. People are not getting sort of knifed off camera so to speak. They’re getting their opportunity and their day in court. It is true that Judge Pickering was voted down, Justice Owen was voted down. Mr. Gray, I think, seems to think that Miguel Estrada is in some risk here.

There are people who are concerned about Miguel Estrada. There are many people who oppose Miguel Estrada but my impression of what was said — sort of telegraphed at the hearing today about the substance of Miguel Estrada and from everything I’ve heard is that in time he will probably get through — absent some thing that comes forward that nobody yet knows about that brings into question his suitability which I think is not going to be in doubt.

That’s his ability, his integrity, his really extraordinary credentials or his judicial independence, which is the kind of inquiry that I think Senator Schumer is really after, which is “let me know what you think. Okay. Now I understand what you think. And I don’t agree with a lot of that,” he might say, “but what I now want to know is can I be satisfied that you will go on the bench and act as a judge independently of your specific personal views?”

That’s why I go back to Professor McConnell because there’s nobody I can recall who had such a litany of positions and such a record that many, many, many progressive Democrats and indeed others, progressive Republicans, would not share. But I believe that they are going to be satisfied that he can go on the bench and do his level best, which is all we can ask of people, to be an independent jurist.

RAY SUAREZ: Very quickly. Does this process need some revisiting, some reform, some burying of hatchets?

C. BOYDEN GRAY: Well I think that maybe it needs more, more public ventilation because I do not think as I said earlier that the public really wants a Senator from New York or a Senator from Wisconsin to determine who the full Senate votes on. I really think that that needs more public debate.

RAY SUAREZ: Boyden Gray, Eleanor Acheson, thank you both.