The vast left-wing conspiracy has had 645 days to make a case against Miguel Estrada’s appeals court nomination are now using a filibuster to prevent the Senate from voting at all. You’d think their case was pretty strong. You’d be wrong.
First, they say Estrada has no judicial experience. Anyone appointed to a judicial position for the first time has, by definition, no judicial experience. Like most of the judges on the court to which Estrada has been nominated. Like dozens of President Clinton’s appeals court nominees. Good grief, like Supreme Court Chief Justice William Rehnquist.
Second, they say Estrada revealed little during his Judiciary Committee hearing. Were that true, it would hardly justify a no vote, let alone a filibuster. But it’s not even true. Estrada’s hearing lasted for nearly six hours. The transcript runs more than 250 pages. Estrada said plenty. Democrats just couldn’t get him to say anything they could use against him.
Senate Democrats want to know only how a nominee, if confirmed, will rule on their pet issues. If Estrada revealed little during his hearing, it’s because they asked completely inappropriate questions that no nominee should answer.
Sen. Herb Kohl (D.-Wis.) asked Estrada’s opinion of the Supreme Court’s federalism decisions and whether he agreed with recent district court decisions striking down the death penalty. Sen. Dianne Feinstein (D.-Calif.) asked: "Do you believe that Roe [v. Wade] was correctly decided?" Sen. Patrick Leahy (D.-Vt.) asked Estrada how he would have decided Romer v. Evans, which held that states may not prohibit special rights for homosexuals.
These senators knew that ethics rules prohibit judges or judicial candidates from opining on issues or cases that may come before them. They knew Estrada would not answer such litmus-test questions. So they asked inappropriate questions and then criticized the nominee for not being more forthcoming.
Third, the Justice Department has refused to produce private confidential memos Estrada wrote when serving as assistant to the solicitor general. Every living former solicitor general-Republican and Democratic-signed a letter explaining the obvious: The "unbridled, open exchange of ideas" on which they rely for important decisions "simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure." Senate Democrats faulted the nominee for not meeting a completely illegitimate demand.
That’s their case. It is based entirely on what is not known. No one has anything negative to say about what is known about Estrada. The Democrats’ slim case is hardly sufficient to justify voting against a nominee, let alone to use an unprecedented filibuster to prevent any senator from voting at all.
Sen. Edward Kennedy (D.-Mass.) said in February 1998 that if senators do not like nominees, they should "vote against them. But give them a vote." Sen. Richard Durbin (D.-Ill.) said in September 1998 that senators’ responsibility "requires us to act in a timely fashion on nominees sent before us. . . . Vote the person up or down."
Feinstein said in September 1997 that the Senate should "debate [nominees] if necessary, and vote them up or down." Sen. Joe Biden (D.-Del.) said in March 1997 that "everyone who is nominated is entitled to have a. . . vote on the floor."
Now, as if history begins afresh with each new day, these senators all support the Estrada filibuster.
Democrats are willing to undermine judicial independence, undermine the integrity of the solicitor general’s office, and undermine the Senate’s constitutional confirmation duty just to keep this Latino off the U.S. Court of Appeals.
What are they afraid of?