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March 06, 2013

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Avon

I couldn't agree more with Pancho's short comment. Estrada's perjury (if it was that) is on a par with Abe Fortas's little flaw (if you can call it that). It was right not to consent to their appointment to the Court. And while Bybee's advocacy of torture has First Amendment protection, it disqualifies him to uphold the Constitution; if it was not his actual belief but just some craven kind of obedience to the boss, then signing it disqualifies him as a judge.

I couldn't disagree more with Pancho's long comment. It tells only half the story. The problems with Estrada ran deeper than that, though I like his judicial-diversity point.

Pancho

Obviously, despite the first reader feedback, Estrada was qualified by his experience.

On the other hand, he probably perjured himself before the Judiciary committee with reference to his denials of his thoughts on Roe v. Wade, etc.

Jay Bybee still sits on the 9th Circuit bench, despite his memo that authorized torture in violation of the Geneva conventions. He was confirmed in 2003, but should have been impeached in 2004 after the Bush administration finally surrendered that memo that he and John Yoo authored.

Pancho

George W. Bush nominated Estrada to a position on the United States Court of Appeals for the D.C. Circuit on May 9, 2001. He received a unanimous "well-qualified" rating from the American Bar Association.

Democratic Senators opposed the nomination, noting Estrada's lack of any prior judicial experience at the local, state, or federal level. Additionally, though a member of The Federalist Society, Estrada had never been an academic, so there was no record of his writing by which the Senate could review his record. He had worked in the Office of the Solicitor General under the senior President George Herbert Walker Bush. He had also been a partner in the same law firm as Ted Olson, working on the legal team that represented the younger Bush in the Bush v. Gore case. Thus he and his record were well known in conservative circles, and he was even known to be a friend of Ann Coulter who acknowledged him in her book.

Yet, in his testimony before the Senate Judiciary Committee, he claimed he had never thought about Roe v. Wade even while serving as a Supreme Court clerk at a time when the first Bush Administration had asked the Court to reconsider it. Also while as Justice Kennedy's clerk, he interviewed potential candidates for the clerkship. In an article published in The Nation magazine Jack Newfield alleged that Estrada had disqualified candidates who were too liberal. When questioned about this by Sen. Charles Schumer at the confirmation hearing, Estrada changed his recollection of the incident during his testimony. Democratic Senators also objected to the refusal by the Office of the Solicitor General to release samples of Estrada's writings while employed there, although such a release of confidential documents would have been precedent-setting. Minority Leader Tom Daschle was quoted by the Associated Press as saying, "The stumbling block to Miguel Estrada's nomination all along was the administration's refusal to allow him to complete his job application and provide the Senate with the basic information it needed to evaluate and vote on his nomination."

A bipartisan group of former Solicitors General wrote a letter objecting to the Democrats' demand for memos that Estrada had written while he was with the office. The letter argued release of prior memos by government employees to the public would endanger the Solicitor General Office's ability to provide confidential legal advice to the Executive Branch. (Two years later, Republican Senators would also request confidential White House memos in the confirmation hearing of Miers, who also had no publication record.)

Leaked internal memos to Democratic Senate Minority Whip Dick Durbin mention liberal interest groups' desire to keep Estrada off the court partially because "he is Latino," and because of his potential to be a future Supreme Court nominee. A spokesman for Durbin said that "no one intended racist remarks against Estrada" and that the memo only meant to highlight that Estrada was "politically dangerous" because Democrats knew he would be an "attractive candidate" that would be difficult to contest since he didn't have any record. Democrats argued that Estrada had extreme right-wing views, although others pointed to Estrada's difference with some conservatives on Commerce Clause issues.

On March 6, 2003, there was the first of seven failed cloture votes on Estrada. Fifty-five senators voted to end debate on his nomination and allow a final confirmation vote, and forty-four senators voted not to end debate. After twenty-eight months in political limbo and a protracted six-month battle using the filibuster, Estrada withdrew his name from further consideration on September 4, 2003. Bush nominated Thomas B. Griffith in his place, who was confirmed in 2005 under the terms of the Gang of 14 Deal.

With the benefit of hindsight, Jan Crawford Greenburg has said of the nomination that "[i]f Majority Leader Bill Frist had shown real leadership, he would never have allowed a Democratic minority to achieve the first-ever filibusters of appeals court nominees. If Trent Lott had been majority leader, Estrada would have been confirmed."

Numerous judicial nominees prior to Estrada had been kept off the courts, when the Senate refused to let the nomination out of committee for a floor vote. A filibuster had been used in 1968 to extend debate regarding the elevation of Associate Justice Abe Fortas to Chief Justice of the United States, but the Estrada filibuster was different in multiple ways. Estrada's was the first filibuster ever to be successfully used against a judicial nominee who had clear support of the majority in the Senate. Estrada's was the first filibuster of any court of appeals nominee. It was also the first filibuster that prevented a judicial nominee from joining a court.

In May, 2010, Estrada wrote a letter to the Senate Judiciary Committee in support of President Barack Obama's nominee to the U.S. Supreme Court, Elena Kagan, as Estrada and Kagan have remained friends since meeting as students at Harvard Law School. In his letter, Estrada strongly commended Kagan for appointment to the court as "an impeccably qualified nominee" possessed of a "formidable intellect" and an "exemplary temperament." While openly recognizing that her views on judicial role and Constitutional interpretation are "as firmly center-left as my own are center-right," Estrada went on to insist that "one of the prerogatives of the President under our Constitution is to nominate high federal officers, including judges, who share his (or her) governing philosophies". Evidently, in 1999, Kagan had been nominated by President Clinton to serve on the D.C. Circuit—the same court Estrada was later nominated to. At that time, Kagan was kept off the circuit court because Republicans—the majority party in the Senate—refused to give her a hearing or a vote, though she was not subjected to the filibuster later used by Democrats to block Estrada's nomination.

Likewise, at her confirmation hearing on June 29, 2010 before the Senate Judiciary Committee, when asked by Senator Lindsey Graham whether she believed that Estrada was qualified to serve on an appellate court, Kagan responded affirmatively and added that she believed Estrada was qualified to serve on the Supreme Court as well. Kagan then told Senator Graham that she would welcome the opportunity to put this belief in writing after her hearing. When questioned by Senator Coburn the following day, she reaffirmed her position, saying that she "...would have voted for him." In July, 2010, in follow-up to her promise to Senator Graham, Kagan wrote a letter expressing her belief in Estrada's "superlative" qualifications for appointment to "any federal court," whether to the federal appellate or to the U.S. Supreme Court. In her letter, Kagan commended Estrada as "a towering intellect" with "a prodigious capacity for hard work," also remarking that "no one I know is a more faithful friend or a more fundamentally decent person".

Avon

I cringe to think that Democrats denied cloture on the Estrada nomination - but he was so grossly unqualified to be an impartial judge that I would've cringed more to see him confirmed.

Still, cloture is supposed to be withheld only when more discussion is needed. When the majority is out of control and favors a horrible appointee for political reasons, a mis-use of the tactic for the greater good of the Constitution is understandable. But Halligan's confirmation is not one of those times.

Bravo to Obama for insisting. We can move on for now to the three other vacancies, but this discussion is NOT over.

Buckley

Good to see that the Legal Times also included comments from groups that aren't progressive/liberals ones. Oh wait...

Rick

I'm going to give Senator Lisa Murkowski (R-AK) some credit...At least she has courage, she wasn't even part of the Gang of 14 Compromise, yet she actually honors it..She supported cloture on Halligan twice, and Liu once....The senators who were part of the agreement (Alexander, Graham, McCain) feel that the agreement ONLY applies when its a Republican president making the nominations...

Well, if the GOP was able to filibuster Caitlin Halligan w/their WEAK arguments, Democrats will have a field day if a future GOP president nominates Paul Clement to a Circuit Court/SCOTUS appointment..

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