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Jewish World Review March 11, 2003 / 7 Adar II, 5763

Nat Hentoff

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Beyond the fate of Miguel Estrada | Regardless of what happens to Miguel Estrada's nomination to the District of Columbia Court of Appeals, Judiciary Committee member Charles Schumer (D-N.Y.), who is spearheading the campaign to prevent the entire Senate from voting on the nomination, without a filibuster, has been preening on television that he has read the Federalists Papers. But, in No. 76 of that guide to the framers' intentions, Alexander Hamilton plainly stated that the president is "bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature." In case the fulsome Schumer missed that page, Hamilton, in No. 77, said again, just as clearly, that "each nomination" must be submitted to "an entire branch of the legislature."

However, the passion Schumer and his bristling Judiciary Committee allies, such as Richard Durbin (D-Ill.), have displayed has nothing to do with historical research. They are pursuing a grand Democratic plan to so frustrate the president that he will henceforth send up only nominees that will appease the committee's lockstep Democrats, along with the law professors who have been advising them on how to rig the confirmation process.

I would greatly prefer seeing George W. Bush appoint to the circuit courts and Supreme Court modern-day equivalents of Louis Brandeis and William O. Douglas than seeing the preponderance of alumni of the Federalist Society. Those who fear more Antonin Scalias on the federal bench seem oblivious to the fact that, when the White House and Congress are again in Democratic hands, minority Republicans on the Senate Judiciary Committee -- pointing to the present full-scale obstructionist precedent -- will apply the same scorched-earth tactics.

With regard to the ostensible principal charge against Miguel Estrada, that he did not answer all the Democratic Senators' questions to their satisfaction, I recommend to historian Schumer what President Abraham Lincoln said when Salmon P. Chase -- an opponent of Lincoln for the 1860 Republican nomination -- was nominated by Lincoln as chief justice of the Supreme Court:

"We cannot ask a man what he will do (on the Court), and if we should, and he should answer us, we should despise him for it." The Senate as a whole confirmed Chase.

Regarding the Democrats bastinadoing of Estrada, Washington Post editorial writer Benjamin Wittes -- who should have his own column on legal issues in that paper -- wrote of Estrada that "nothing about his record warrants abandoning the respect for a nominee's silence. ... And silence is the only honorable response to certain questions. It is quite improper for nominees to commit themselves on cases that could come before them." Questions such as, What do you think of Roe v. Wade?

"Not knowing what sort of judge someone will be is frustrating," Wittes continued. "But that is the price of judicial independence."

As part of this blocking of Estrada, Sen. Durbin accused him of refusing to tell him which federal judges, living or dead, he admires. But in answer to Durbin's written questions, Estrada named Supreme Court justices Lewis Powell and Anthony Kennedy, as well as Amalya Kearse. Judge Kearse of the 2nd Circuit Court of Appeals was, I was told, on the short list years ago for an appointment to the Supreme Court. But apparently she was too independent for President Clinton. I have considerable respect for her judicial record. Does that make me a right-winger?

Most of those in the general public who were at all aware of Estrada's reputation before Judiciary Committee Democrats grilled him would have known nothing that contradicted the high praise he received for his legal expertise and character from former Democratic Solicitor Generals Seth Waxman and Drew Days III, each of whom Estrada served under. By now, Estrada's name is -- through much of the media -- connected with evasion and suspected rigid conservatism.

Walter Dellinger, also a former Democratic solicitor general, wrote in the Washington Post that "one wonders how much longer many lawyers of any distinction will even agree to have their names submitted for a process that is so uncertain, disruptive and perilous to reputation."

During the delaying process on the Estrada nomination on the Senate floor, which Senate Minority Leader Tom Daschle has authorized, Tom Harkin (D-Iowa) said that he "never met (Estrada). But I know people who have associated with him ... think he is some kind of right-wing kook. Is he a right-wing kook? I don't know. Some people say he is."

This is not the quality of debate on which James Madison took notes during the 1787 Constitutional Convention. If I were teaching civics in a high school, I'd bring to class the Congressional Record on the Estrada nomination debate, and implore the students to take their responsibility as voters very seriously.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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