The Senate is expected today to consider the nomination of Miguel Estrada to the influential U.S. Court of Appeals for the D.C. Circuit. Given the vitriol Mr. Estrada’s nomination has engendered Sen. Charles Schumer has called him a “far-right stealth nominee” and a “sphinx-like candidate,” and some Democrats have raised the specter of a filibuster it’s worth taking a look at the case against him.
The first thing one realizes is that there is no case. The only real objection Democrats have toward Mr. Estrada is that they don’t know enough about him but that what they do know suggests he is a right-wing ideologue who lacks the temperament to dispassionately administer justice.
This claim is largely based on two dubious sources. The first source is a story that appeared in the liberal Nation magazine in October, in which two unnamed sources claim they were passed up for clerkships with Justice Anthony Kennedy because Mr. Estrada didn’t like their politics. Both said they felt Mr. Estrada subjected them to “an ideological litmus test.”
While Mr. Estrada couldn’t respond to those particular anonymous allegations, he did say that he would reject an applicant “if I think the person has some extreme view that he would not be willing to set aside in service to Justice Kennedy.” That seems a reasonable operational starting point, and suggests that Mr. Estrada held foremost the fair and neutral application of the law.
The second bit of supporting “evidence” comes from Paul Bender, the nominee’s immediate boss in the Solicitor General’s Office during the Clinton administration. In April, Mr. Bender told the Los Angeles Times that Mr. Estrada is so “ideologically driven that he couldn’t be trusted to state the law in a fair, neutral way.”
That might be a serious charge except Mr. Bender’s own reviews of Mr. Estrada at the time were nothing short of glowing. “States the operative facts and applicable law completely and persuasively,” he wrote of the nominee. “Extremely knowledgeable … goes directly to point of the matter and gives reliable, accurate, responsive information.” Mr. Bender described Mr. Estrada as “diplomatic, cooperative,” and noted that “briefs, motions or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies.” What’s more, the nominee “inspires co-workers by example.” If Mr. Estrada holds the conservative views his liberal detractors say he does, then his time in the besieged Clinton Justice Department suggest he is quite capable of quelling those opinions and working dispassionately.
Of course, what bothers the liberal Democrats is the widely held belief that Mr. Estrada is on the Bush administration’s short-list for Supreme Court nomination, and that he will be in a position to make his opinions law. Democrats are convicting Mr. Estrada for a crime he supposedly will commit in the future. That not only defames a well-qualified man; it puts the lie to their concerns about defending justice and the Constitution.