The Estrada Pi?ata
Eastland, Terry
The Estrada Pinata The Democrats take a whack at Bush's appellate nominee. BY TERRY EASTLAND SENATE DEMOCRATS say they don't know enough about Miguel Estrada's legal views. That's the reason they...
...Court of Appeals for the D.C...
...During his hearing, Estrada revealed himself as the thoughtful lawyer he is generally reputed to be...
...Judiciary Committee Democrats asked about Roe v Wade, the 1973 case in which the Court extended the right of privacy to encompass a woman's right to abortion...
...You can see why Democrats weren’t happy with Estrada during his hearing, since he consistently declined to opine on the particular decisions they raised...
...That's the reason they give for filibustering his nomination to the U.S...
...In others they eventually held hearings but didn't vote on the nominees...
...The battle over Estrada is not merely about Estrada...
...The Democrats asked about Romer v. Evans, the 1996 case in which the Supreme Court—with Justices Rehn-quist, Scalia, and Thomas dissent-ing—struck down a state constitutional provision precluding any governmental action designed to protect the status of persons on the basis of sexual orientation...
...Twice they rejected nominees on party-line votes...
...Fortunately, by ^k showing us exactly how Democ- M rats have tried to "know" Estra- V da, the record makes amply clear V what those views are...
...In each of those cases the Court declared an act of Congress unconstitutional...
...The Democrats also asked about "diversity," the rationale higher educators typically give for favoring certain applicants over others on the basis of race...
...And they don't want judges, or justices, disrupting that agenda or questioning legislative power...
...Only a party that puts ideology before everything could think the filibuster, a politically risky tool, worth the cost of its employment...
...In sum, the Judiciary Committee Democrats support the liberal social agenda of their party and big government...
...Charles Schumer told the nominee at the end of his confirmation hearing last fall, before the Democrats lost the Senate, "We don't know you...
...Circuit...
...In light of growing evidence that a substantial number of innocent people have been sentenced to the death penalty, does that provide support, in your mind," he asked Estrada, "for the two federal district court judges who have recently struck down the death penalty as unconstitutional...
...As Sen...
...Terry Eastland is publisher of THE WEEKLY STANDARD...
...In Estrada's case...
...And the usual instrument for bringing about the results Democrats favor is the "living Constitution...
...And which, of course, is the big issue before the Supreme Court in the Michigan affirmative action cases...
...It also helps 1 to explain the Democrats' decision P to filibuster...
...They suggest (if they don't outright state) what the senators think about law and judging...
...In the I07th Congress, Senate Democrats tried to use their power as the majority party to influence the president's exercise of his exclusive power to nominate: In some cases they refused to grant a hearing...
...If the Democrats do succeed with their filibuster, they will intensify their calls for the president to choose "moderate" jurists, which is to say, judges more to their liking...
...Herbert Kohl...
...And he wasn’t going to do that kind of work as part of the confirmation process...
...Now in the minority and thus unable to run the Judiciary Committee, the Democrats are down to the filibuster...
...They want "diversity" validated as a sufficient legal justification for race-based admissions...
...Such nominees will have to reveal their compatibility with Democratic views during their confirmation hearings, if they have not done so before...
...They asked about Regents of the Universitty of Calif^^nia v. Bakke, the 1978 case that okayed the use of race in admissions so long as it doesn't involve a quota...
...Not surprisingly, this wondrous Constitution made an appearance in Estrada's hearing, in a question on the death penalty posed by Sen...
...They indicate the preoccupations, interests, and passions of the senators...
...Not incidentally, the two judges who declared the death penalty unconstitutional (thus defying the Supreme Court) are Clinton appointees...
...Far from abating now that Republicans hold the Senate, the war over judges has, for the moment, turned very hot...
...Ideally, they want jurists who advance their agenda and agree with their conception of congressional authority...
...They want abortion rights to remain in the Constitution...
...It's also about the president's judicial nominees in general, especially those for the circuit courts and the Supreme Court...
...They want Romer to remain the law of the land...
...The questions senators (whether Democratic or Republican) ask a nominee are revealing...
...Democrats also weren’t impressed by Estrada’s frequent statements that, were he confirmed, he would have no qualms of any kind about following Roe or Romer or any other Supreme Court decision...
...on the other hand, they have doubts about the death penalty, the constitutionality of which the High Court has affirmed, and they disagree with the federalism decisions that started with Lopez...
...Judiciary Committee Democrats asked about those things for obvious reasons...
...Even Schumer conceded his "legal excellence," calling him "a very, very intelligent, accomplished lawyer...
...Yet committee Democrats, all of whom voted against him, showed little interest in exploring his view of "judging as a process that is intended to give us the right answer, not [lead] to a result...
...But the neglected story in the nomination battle over Estrada concerns the legal views of Senate A Democrats...
...What Estrada meant, as he later explained, was that it wouldn’t be appropriate for him to offer a view on a case “without doing the intensive work that a judge hearing that case would have to undertake...
...And they asked about the constitutionality of the death penalty...
...Kohl would have this "growing evidence" trump the constitutional text, which explicitly accepts capital punishment...
...Dianne Feinstein on Roe v. Wade, didn’t allow him to answer her question, which was the pointed, “Do you believe that Roe v. Wade was correctly decided...
...Yet against Estrada, it just might work: It takes 60 votes to break a filibuster, and right now the Republicans have only 54—their own 5I plus the votes of three Democrats...
...They inquired about Lopez v.United States the 1995 case in which the Court invoked the Commerce Clause to strike down a 1990 act of Congress, the Gun-Free School Zones Act...
...For committee Democ-rats—and perhaps now for most of their colleagues outside the committee—judging is less about process than it is about results—preserving those already in place and reaching for new ones...
...Touted by Al Gore in the 2000 campaign, the living Constitution is the one judges create by adapting the presumably dead Constitution to modern times...
...Doubtless it didn’t thrill the Democrats when Estrada, consistently applying that principle of deference, also said that Lopez “is binding law and I would follow it...
...His “view of the judicial function,” as he explained in an exchange with Sen...
Vol. 8 • February 2003 • No. 23
