. . . .

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.

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.

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."

"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."

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.

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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).

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.

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).