The attack on appeals court nominee Miguel Estrada reveals the third of the far-lefts three-part strategy to defeat President Bushs judicial nominees.
Estrada, currently a partner at Gibson, Dunn & Crutcher here in Washington, D.C., received a unanimous "well qualified" rating from the American Bar Association, whose views Senate Democrats once lauded but now shun. He graduated magna cum laude from both Columbia College and Harvard Law School, and clerked for Supreme Court Justice Anthony Kennedy. He served as an Assistant U.S. Attorney under the first President Bush and an assistant to the solicitor general under President Clinton.
The far-lefts overall goal is to minimize Bushs impact on the judiciary for one simple reason: His judges are unlikely to sufficiently advance the leftist political agenda. Their playbook outlines what might be called the "EEOC Strategy," for Extremism, Ethics, Or Credibility, the leftist lines of attack against "controversial" nominees.
In the Leftist World, where politics is everything, judges impose their personal views through their decisions. Thats what judges do, so knowing the views that will be imposed is necessary in selecting them. Even personal, political, or religious views are fair game and "extreme" ones (Leftist Speak for "not leftist") are unacceptable.
The problem is uncovering those views. Sitting judges, of course, have past votes and written opinions that are probably the most relevant for predicting how they might decide future cases. Leftist groups, echoed by Democrat senators, used this type of record to brand appeals court nominees such as U.S. District Judge Charles Pickering and Texas Supreme Court Justice Priscilla Owen as "extremists." The Judiciary Committee voted both of them down, something Republicans never did to a Clinton nominee.
A law professors "paper trail" may be voluminous but is less relevant. Academics can always argue that they dont personally hold those views, that past views have changed, or that they will not impose their personal views through their judicial decisions. The far-left questions the first response, condemns the second as a "confirmation conversion," and refuses to accept the third. But with backing from hundreds of other academics, appeals court nominee Prof. Michael McConnell will be confirmed.
Mere lawyers have the stingiest record. Even if they have worked on cases involving controversial issues or clients, they can assert the "I was just an advocate" defense. Unless they have written articles or given speeches on the side, evidence of their views is scarce. Estrada falls into this category, having spent his career working hard but not championing ideological causes or promoting a political agenda. He worked in the Justice Department of both a Republican and Democratic administration.
So what are the leftists to do with Estrada? Judiciary Committee Democrats have demanded that the Solicitor Generals Office disclose the memos and other work he did when he served there in the 1990s. Leftists hope that fishing expedition will turn up clues about his views. Not surprisingly, in a letter to the Judiciary Committee, all living former solicitors general have opposed this unprecedented step.
When they cannot zero in on a nominees personal views, the left will question a nominees ethics, even if they have to make up the accusations. They accused U.S. District Judge D. Brooks Smith, nominated to the U.S. Court of Appeals, of violating judicial ethics rules by belonging to an all-male fishing club. They claimed Judge Pickering improperly discussed a pending case with a friend. They accused Justice Owen of failing to step aside in cases where one of the parties had been a campaign contributor. But with Estrada, the far-left strikes out again. They havent been able to manufacture an ethics complaint against him.
That leaves the issue of "credibility." The left-wing Nation magazine quoted two anonymous lawyers who claimed they had applied to clerk for Justice Kennedy. Estrada, who was helping his boss screen applications, supposedly said they were too liberal to work for the Justice. At Estradas September 26 hearing, Sen. Charles Schumer (D.-N.Y.) asked him, in a precisely worded question that he repeated, whether the nominee had ever said such things. Obviously blindsided, Estrada first denied it, but then said it might have been a joke, and later conceded "it is possible" he might have come to that kind of conclusion about an applicant.
On a Bender
Schumer said: "This takes a yes or no answer if youre being truthful with this committee." He stopped Estradas further attempt to explain and announced: "I think we have some credibility problems here." Clank! The trap was sprung. And sprung by the senator who, in his statement opening that very hearing, had denounced what he called the "gotcha politics" dominating the confirmation process.
When leftists cannot adequately brand a nominee an "extremist," they will settle for "ideologue." Paul Bender, deputy solicitor general in the Clinton Administration and one of Estradas supervisors in the office, pins the "ideologue" label on Estrada. He now says that, in the Solicitor Generals Office, Estrada could not separate his ideology from his lawyering.
Four things deprive this accusation of life: First, Bender signed a series of performance evaluations giving Estrada the highest "outstanding" rating. None of them raised any flags about bias, ideology, or extremism. Some noted exactly the opposite. Second, every other official in the office has praised Estradas work, including its even-handedness and fairness. Third, the American Bar Association includes in its "judicial temperament" criterion such things as "open-mindedness" and "freedom from bias." The ABA gave Estrada its highest rating.
And fourth, Bender appears to be the one whose ideology interferes with his lawyering. As the "political" deputy in the Solicitor Generals Office, he had inordinate influence over policy on a range of controversial issues, including child pornography. Bender had been chief counsel to the 1970 presidential commission on obscenity that recommended eliminating all legal restraints on obscenity and pornography. The Senate voted 95 to 5 to reject this extreme proposal.
Bender apparently carried the cause forward to the Clinton Administration. A case titled United States v. Knox involved a pedophile convicted of possessing videotapes of young girls provocatively posed and scantily dressed. The legal issue in his U.S. Supreme Court appeal was whether the federal child porn statute, banning depictions of a minor engaging in "lascivious exhibition of the genitals or pubic area," could apply when the minor was at least partially clothed. The Clinton Justice Department first argued in March 1993 that the statute did not require actual nudity.
After the Supreme Court accepted the case, the Justice Department switched positions and in September 1993 sided with the pedophile, arguing for a narrow definition of child porn. The difference? Bender had come on board. Since the prosecutor now supported the criminal, the Supreme Court sent the case back without deciding it. The U.S. Court of Appeals, however, later twice rejected this unprecedented and radical re-definition of child porn
This time the Senate voted 100 to 0, and the House voted 426 to 3, for a resolution condemning Benders position. President Clinton himself, no prude in sexual matters, agreed in writing with the Senate that the new Benderized definition was unacceptable. But Bender is the man claiming Estrada is an ideologue. No wonder Bender hasnt given interviews on this subject in months.
The far-left could not accuse Estrada of extremist views or question his ethics, so they set a credibility trap. That may not doom this nomination, but it does show how far the left will go to control the courts.