Wednesday, July 13, 2005
Miguel Estrada – keeps his secrets
For one overriding reason, Bush once nominated – and Senate Democrats blocked – Mr. Miguel Estrada for the Appeals Court of DC, the 2nd highest court in the nation.
The reason: Estrada's way of thinking on flashpoint legal matters was fully cloaked in 2002 and 2003 and remains hidden still – even after his questioning by senators at his confirmation hearing. This very quality would make Estrada a tantalizing candidate to fill a Supreme Court vacancy.
A co-worker of Estrada's, Edward Lazarus, gave insight into these motivations, in an article he wrote for findlaw at the height of the nomination controversy in 2003.- Memos "would probably torpedo" Estrada
- "Jam the Senate's ideological radar"
- Hasn't carefully thought about Roe? It isn't possible
A credit for the author at the foot of the page offers this : Lazarus "knows Estrada personally, having clerked with him on the Supreme Court during the same time period." (Estrada clerked for Anthony Kennedy in the late 1980s; Lazarus clerked for Harry Blackmun.)
Lazarus wrote (link at bottom) about the political calculations of (1) the White House, (2) the senators and (3) Estrada during his testimony.
Miguel Estrada made that perfect "stealth candidate," Lazarus says, a turn of phrase that applied once to nominee David Souter in 1990 as well, because he too did not have a paper trail of rulings and positions.
Lazarus tells us –
Which way Estrada would hold on key issues like abortion and affirmative action is well known to White House people who select Estrada, and it is suspected (but not demonstrable) by the Democrats. The Senate Democrats repeatedly filibustered the nominee because of "what they know (but can't prove) to be Estrada's super-conservative views." The public doesn't know what the vetters do.
The opposing senators in 2003 were holding out for Justice Dept. memos written by Estrada when he worked for Bush 41 in 1990 to 1992.
I'm going to quote liberally from the findlaw column.
Estrada's former colleague on the Supreme Court staff, Lazarus, expects
"what the memos contain would probably torpedo Estrada." Even so, he sympathizes with the White House's desire to keep the memos out of the public light.
Sure, Estrada is a "damn good lawyer. .... Yet the former Supreme Court clerks and Federalist Society types who vet judicial nominees know they're getting a lot more than that.
.... [He holds] a deeply felt and exquisitely conservative approach to the law."
"Estrada has been an academic star, and conservative darling, at least since law school. He was a Supreme Court clerk, and he worked in the U.S. Solicitor's General's Office."
If Bush picks Estrada ---> he'll "jam the Senate's ideological radar"
The Estrada selection (in 2001) [was] "a highly ideological and cynical enterprise." (Not surprisingly, Lazarus says opposition to him was similarly ideological and cynical. So too was the nominee's efforts in shielding his views.)
M.E. made "a candidate whose (publicly known) views on the major legal issues of the day are shrouded in mystery." (Contrast him to say Michael O'Connell or Emilio Garza, whose positions up to now are public knowledge. O'Connell even wrote of his thinking on Roe v Wade in a WSJ op-ed.)
"The President has the right to choose judicial nominees on the basis of ideology. ...
"But the Senate equally has the right to veto nominees based on ideology too. And the President defeats that Senatorial prerogative when, as in the case of Estrada, he attempts to jam the Senate's ideological radar by offering a blank public record.
"It's not just that he's chosen [in 2001] a nominee who hasn't taken public stands previously. That is perfectly fine. It's that Presidential advisors [were] doubtless counseling Estrada to avoid taking any such stands in the confirmation process, either." [The committee hearing for Estrada took place in Sept. 2002.]
"The result is that insiders know all too well what Estrada probably thinks, but the public has little clue - not exactly an attractive situation in a democracy."Let's look at Estrada's testimony so far. He's done a great deal of bobbing and weaving to avoid candidly expressing his views about Roe v. Wade. Unfortunately, he hasn't been able to come up with a plausible reason for all his evasions ....A Star Lawyer Who Hasn't Carefully Thought About Roe? It Isn't Possible.
"Basically Estrada has testified that he has not had occasion to consider whether Roe was rightly or wrongly decided, having never faced an actual case or controversy requiring such an evaluation.
"C'mon. ..... Estrada has lived and breathed conservative legal thinking for the last almost two decades..... In addition, Estrada clerked at the Supreme Court at the time when the elder Bush Administration first asked the Court to formally reconsider Roe. And after that, he went to the Solicitor General's office, where issues of constitutional interpretation are the very stuff of daily life.
....Roe has emerged as the single most important case for constitutional thinkers in the last 30 years... And Estrada is a constitutional law debater. That's his stock in trade. To say that he just hasn't given Roe enough thought is almost laughable
"It's not just Estrada's fault: He's probably been told this is the only way he can get confirmed. Blame the Administration, too: It's promoting Estrada as a legal superstar and, at the same time, coaching him (in 2002) to insist he's legally clueless. Only one of these stances is true, and it's the former: Estrada's very smart. He knows exactly what he thinks about Roe.
The Impossible Position In Which Stealth Nominees Leave the Senate
"In my view, thinking ill of Roe is no vice ....." (Lazarus goes on to say he himself has some difficulties with the decision.) "But pretending to agnosticism is."
"That's because a true stealth nominee — one who not only lacks a paper trail, but who also is not forthcoming when he testifies — hands the Senate an impossible choice.
"Playing Blind Man's Bluff with judges and Justices who sit for life is the most dangerous of games for the country."
The findlaw.com article is here [February 20, 2003]
Copyright © 1994-2003 FindLaw
http://writ.findlaw.com/lazarus/20030220.html
Monday, July 04, 2005
Senate forced a 60-vote hoop on many nominees – 1993, 1994, 1995, 2000, 2005
Post in progress
Would you be surprised to know how many times GOP senators made a President's appointees jump a 60-vote hoop to be confirmed? See their own roll-call votes below to deny cloture.
Fatal filibuster (GOP led) #1 - Henry FOSTER to be Surgeon General - June 22, 1995 (head of the US Public Health Service)Henry Foster - was defeated by a minority-number of votes in 1995 —
Fatal filibuster #2 - Sam BROWN for Ambassador rank appointment - May 25, 1994
43 Republican senators nixed-and-thwarted the nominee.Though 57 members voted to proceed to a vote,
See the roll-call list >>
Sam Brown was turned down for the rank of Ambassador in 1994,
by 42 Senators who did not let the nomination go forward.
You can scan the roll call below, and also scroll down below that to see when Stephen Breyer, who sits now on the Supreme Court, had to surmount cloture to become a federal judge.
Brown nomination (cloture vote, rejected):
As for JUDICIAL nominees, Republicans and sometimes Democrats made them regularly jump the 60-vote hoop.
DID appeals court nominees have to surmount a 60-vote hurdle?
Just ASK Stephen Breyer (now on the Supreme Court), when he was named by President Carter to be an appeals judge
on the 1st circuit in 1980.
BREYER had to overcome two cloture votes.
He did not muster the required 60 votes on the first attempt to allow an "up or down vote."
The 2nd vote for cloture garnered 68 votes (roll call no. 512, 68 -28.)
The vote to confirm Breyer succeeded, 80 -10 (no. 513).
[When he was nominated in 1994 to be a the Supreme Court Justice, Breyer attracted overwhelming support, 87 to 9. Support for Sandra Day O'Connor, Anthony Kennedy and Ruth Ginsberg also was bipartisan and nearly unanimous.]
Republicans and Democrats did make judges and DoJ appointees jump thru the 60-vote hoop for cloture a bunch of times, for Judges Marsha Berzon, Breyer, Richard Paez, Harvie Wilkinson, and Lee Sarokin.
Judge Richard Paez, a Clinton appointee, had to pull more than 60 votes of acquiescence, twice, after he was stalled for 4 years.
Bill Frist voted TWICE to block him, for an "indefinite postponement" (Paez prevailed on that vote 67-31), and in a formal cloture vote (Paez won cloture 85-14). 4 years after being nominated, Paez was confirmed 59-39.
Now he wants time limits on filibusters . . --->
However, BILL FRIST voted against Cloture for Circuit court nominee Richard Paez --after a 4-year wait for
Paez to reach the Floor of the Senate for a vote.
Paez prevailed in that cloture motion.
The Roll call record of the cloture vote can be found here:
Still, one more maneuver to oppose Paez was tried. A motion to further postpone was made the next day.
31 Republican members (including Frist, Lott, Grassley, Santorum, DeWine, Brownback, Kyl, Ashcroft) cast votes "To indefinitely postpone the nomination of Richard A. Paez."
while 67 members voted for the nomination to proceed (not a formal cloture vote).
The vote record is found here.
A vote to move ahead ("proceed") to Paez's confirmation vote was blocked also the year before by 53 Republicans who voted in lockstep (Sep. 1999 roll call).
Walter Dellinger, nominated for Assistant Attorney General by Pres. Clinton, 1993 ––>>
When Walter Dellinger was confirmed as Clinton's Assistant AG in 1993, he needed more than 60 votes of support following 2 failed votes for cloture, as shown by the confirmation roll-call --> 65—34).
The Democrats' initial votes for cloture fell short twice, 58-39, with 39 Republicans voting to deny cloture (2 not voting). However, the vote-counters found that Dellinger had more that 60 eventual votes. In the end, 10 Republicans joined 55 Democrats in approving Dellinger.
Voting against cloture -twice- for Dellinger for the Assistant AG position were Orrin Hatch, Trent Lott, soon-to-be majority leader Bob Dole, Charles Grassley, Lugar, Bennett, McConnell, Nickles, Specter, Hutchison and other Republican senators -- 39 Republicans.
Cloture roll-call (official record) is found here.
