Extreme and shrill voices hope to torpedo the impeccably credentialed and ethically spotless Miguel Estrada, President George W. Bush’s nominee for the United States Court of Appeals for the District of Columbia Circuit. The negativism is ill-conceived, and built on ideas that would stain the rule of law. The chief culprits are Senate Democrats, the Hispanic Caucus, the House Democratic Caucus, and ideologically fixated Hispanic organizations. A page of history begins an exposure of their mischief.
“We cannot ask a [judicial] candidate what he would do; and if we did and he should answer, we should only despise him for it.” So sermonized President Abraham Lincoln to Rep. George S. Boutwell in explaining the nomination of Salmon Portland Chase as Chief Justice of the United States.
That sermon, however, did not foreclose inquiry into a nominee’s philosophy of judging, i.e., what canons of construction would weigh most heavily in constitutional interpretation. Indeed, President Lincoln anticipated that Chase would sustain the Legal Tender Act and the Proclamation of Emancipation. The latter became moot when the Thirteenth Amendment prohibiting slavery was ratified in 1865. But contrary to Lincoln’s expectations, the former was held unconstitutional by Chief Justice Chase in Hepburn vs. Griswold (1870).
As Lincoln’s experience teaches, employing judicial philosophy to appoint does not enable the president to dictate court decisions, thus undermining the purpose of an independent judiciary featuring life tenure and protection against reduced compensation. Time has not discredited that conclusion. President Ronald Reagan elevated then-Associate Justice William H. Rehnquist to Chief Justice and Judge Antonin Scalia to Associate Justice because of their companion philosophies which were thought to preordain politically conservative outcomes. But Justice Scalia voted against the constitutionality of flag desecration statutes; and, the Chief Justice voted to reaffirm the extravagant Miranda vs. Arizona (1966) precedent of Chief Justice Earl Warren. Both votes presumably jarred the former president.
Segue back to nominee Estrada. By time-honored standards, his qualifications sparkle. At age 17, he moved to the United States from his native Honduras. He instantly became an Horatio Alger figure: graduating from Columbia College and Harvard Law School magna cum laude; editing the Harvard Law Review; clerking on the United States Court of Appeals for the Second Circuit and on the Supreme Court with Associate Justice Anthony Kennedy; and, serving as assistant solicitor general of the United States during the “Bush 41” and Clinton administrations.
Mr. Estrada then attained a coveted partnership at Gibson, Dunn & Crutcher. He sports 15 oral arguments before the United States Supreme Court, an extraordinary “Super Bowl” feat for any lawyer. The American Bar Association’s Committee on the Federal Judiciary recognized the obvious in its unanimous and highest well-qualified rating for Mr. Estrada. And Senate Democrats have celebrated the ABA’s Committee evaluations as the gold standard of judicial screening.
Detractors insist that Mr. Estrada is both unqualified and a stealth partisan conservative. Hispanic naysayers, such as the Chairman of the House Democratic Caucus, Rep. Robert Menendez, New Jersey Democrat, also decry the nominee’s refusal to think like Hispanics should think.
Critics ludicrously maintain that Mr. Estrada’s lack of previous judicial service is disqualifying. Such reasoning would have condemned the appointments of legal giants to the Supreme Court: Chief Justice John Marshall, and Associate Justices Louis Brandeis, Harlan Fiske Stone and Felix Frankfurter. Federal appellate nominees are routinely confirmed and then serve with distinction despite an absence of spring training in other courts. Illustrative are supernovas Richard Posner and Frank Easterbrook of the Seventh Circuit; Chief Judge Jay Harvey Wilkinson of the Fourth Circuit; Ray Randolph of the District of Columbia Circuit; Danny Boggs of the Sixth Circuit; and, Alex Kozinski of the Ninth Circuit. That explains Mr. Estrada’s deluxe ABA rating notwithstanding his ill-minded critics.
Sen. Charles Schumer, New York Democrat, berated the nominee for resisting answers to case-specific questions, for example, his view of Roe vs. Wade (1973), the landmark abortion precedent, or his listing of Supreme Court decisions with which he disagreed. According to Mr. Schumer’s thinking, a nominee should be compelled during Senate confirmation to telegraph his judicial votes on crystallized issues. But such interrogation is thrice-cursed: enlightened judging relies on the clashing and clarifying arguments of adverse parties; answers would stumble on a nominee’s natural desire to propitiate opponents or gladden supporters; and, the appearance of justice for both litigants and the public would be shattered by judges who, under oath before the Judiciary Committee, had pre-committed their interpretations, affirmations or disapprovals of dispositive precedents.
Democratic Caucus Chairman Menendez deplores Mr. Estrada’s refusal to salute an orthodox Hispanic agenda if confirmed as a judge: seeking Hispanic clerks; empathizing with the travails of Hispanics; and, interpreting the law to insure Hispanics a fair quota of victories. Mr. Estrada’s independent thinking, the chairman bemoaned, betrayed an inauthentic Hispanic.
In sum, Mr. Estrada’s fatal flaw to his small-minded antagonists is being a quintessential American subscribing to universal American values that bridge racial, ethnic and gender divides. If these tormented critics ever have their way, wouldn’t it mark the beginning of the end of the United States?
Bruce Fein is founding partner of Fein & Fein law firm in Washington.