- The Washington Times - Saturday, September 6, 2003

A Honduran named Miguel Estrada came to the United States and made a brilliant success of himself, but he also happened to be conservative, and it wasn’t clear how he stood on abortion. The uncertainty was enough for Senate Democrats to squash him like a bug, using constitutionally dubious means to deny him a judgeship.

The fact Democrats believed Mr. Estrada might have unkind thoughts about Roe vs. Wade may not have been the only reason for their filibustering obstructionism. Their guess may have been that if he made it to the U.S. Court of Appeals in Washington, the rightward-leaning lawyer would prove himself outstanding and they would find him virtually unstoppable as a Supreme Court nominee some day.

Even so, his supposed abortion stance surely played a major role in their objections, for supporters of abortion rights are primary constituents of the Democrats, and many of the senators seem genuinely devoted to that cause. If you doubt abortion is a key to their actions, look at the unvarnished phoniness of other arguments they made most loudly.

Some expressed doubt Mr. Estrada was qualified.

Huh? It is true Mr. Estrada has not been a judge, but to glance through his oft-recited accomplishments is to become reacquainted with the meaning of the word “stellar.” Arriving in this country as a teen, he went on to become an honors graduate at Harvard Law School. A mark of recognized legal talent is to serve as a clerk of a Supreme Court justice, and he did that very thing. He has argued cases before the Supreme Court. He has been a federal prosecutor. He was an assistant to the solicitor general in the Justice Department. The American Bar Association has given him its highest rating for judicial nominees.

Goodness, said the Democratic senators, we don’t know enough about his beliefs, and he won’t tell us.

He is not all that big a question mark — his Supreme Court arguments are on the record — and he did answer numerous questions, on top of agreeing to meet privately with any senator wanting that opportunity. It has been repeatedly noted that he also abided by well-established ethical guidelines that prohibit discussion of judicial questions that might be confronted on the bench, as have other judicial nominees. Democrats urged him to produce memos written while he was in the Justice Department, but this, said all living solicitors general, would compromise vital communications.

Sixty votes are needed to break a filibuster, so the Senate’s constitutional advise-and-consent role no longer means using a majority vote to block someone demonstrably unqualified for the role. A minority of 41 can stop a nominee, thus weakening the presidential prerogative of nomination.

So here is Mr. Estrada, an honorable, talented man eager to serve his country, and he has been put on hold for two years while the debate has raged and seven votes have been taken. He has had enough, it seems, and he has written the president a letter saying, “The time has come to return my full attention to the practice of law and to regain the ability to make long-term plans for my family.”

Shame on the Democrats, but shame on the Republican senators and the White House, too. The Republican senators could have changed the filibuster rules on judicial nominees while keeping them intact elsewhere, or, as one writer advised, they could have insisted on a real filibuster, not this new kind in which no one actually stands up and talks for hours before the Senate in a test of endurance and political guts.

The White House, so clearly in the right, could also have made more of a fight out of this, and it should have pointed out again and again that judicial philosophy is different from political philosophy — that the important question for someone on the bench is not whether the person favors such and such a political outcome, but whether the person feels bound by close interpretation of the Constitution and the law.

The most frightening judicial philosophy is the one that says a judge needs mainly to make reference in decisions to his or her own conscience and societal understanding. That way lies abandonment of democracy and the threat of judicial dictatorship, and it is what some Democrats seem to favor, so long as the conscience is the conscience of a liberal.

The Democratic senators oppose Mr. Estrada because they suspect he is not ideologically correct on abortion. That’s wrong of them, and the White House should say so just as loudly as it can.

Jay Ambrose is chief editorial writer for Scripps Howard News Service.

LOAD COMMENTS ()

 

Click to Read More

Click to Hide