What’s the Miguel Estrada fight all about? Democratic senators say they’re blocking a vote on confirmation of President Bush’s nominee to a federal appeals court because he did not satisfactorily answer their questions during his testimony in September. He is, they charge, an ideologue who is hiding conservative views. Exactly what did Estrada say and not say during his confirmation hearing?
Estrada asnwered 178 questions during his oral testimony and in response to written follow-up queries.
The 83-page transcript of his testimony to the Senate Judiciary Committee on Sept. 26 and his answers to the follow-up questions reveal a nominee who is willing to discuss his approach to judging but generally not willing to express views on cases, past, present or future.
REFUSING TO CRITICIZE Estrada politely rebuffed repeated urging from Democratic senators that he criticize or praise specific Supreme Court or lower court decisions.
At one point Sen. Patrick Leahy, D-Vt., asked Estrada for his view of a 1996 Supreme Court decision, written by Justice Anthony Kennedy, for whom Estrada once served as a law clerk, which overturned a Colorado law that said homosexuals couldn’t be given protected status.
“I was not a judge in the case,” Estrada replied. “And the question as framed is inherently an unknowable for somebody in my position, who has not sat through the case.”
When Sen. Charles Schumer, D-N.Y., asked Estrada to identify three Supreme Court decisions in the past 40 years that he was most critical of, he said he didn’t want “to be in the business of being a critic of the Supreme Court.”
In only one case, when Schumer himself said he thought the 1976 decision that limited campaign contributions but not candidate spending was “an awful decision,” did Estrada address a court ruling. He agreed, saying: “It certainly was wrong.”
Apart from that, he declined to offer his views on specific cases.
‘NO BEARING’ “Out of deference for the job for which I am being considered and for which I hope to be fortunate enough to be confirmed, the one thing that I do not want to do is to share personal views which to me have no bearing on how I would do my job as a judge,” he told Schumer.
Estrada pledged repeatedly that he would follow precedent and be fair-minded as a judge.
Estrada said the most important quality for a judge “is to have an appropriate process for decision-making. That entails having an open mind. It entails listening to the parties, reading their briefs, going back behind those briefs and doing all of the legwork needed to ascertain who is right in his or her claims....”
He later said that while he had views on many issues, “the first duty of a judge is to self-consciously put that aside and look at each case by starting withholding judgment with an open mind and listen to the parties.”
The ultimate hot-button issue for any federal judicial nominee is abortion.
When Sen. Dianne Feinstein, D-Calif., asked, “Do you believe that the Constitution encompasses a right to privacy?” Estrada replied, “The Supreme Court has so held, and I have no view of any nature whatsoever, whether it be legal, philosophical, moral, or any other type of view that would keep me from applying that case law faithfully.”
Feinstein then asked Estrada whether he believed that the Supreme Court’s 1973 Roe v. Wade decision was correctly decided.
WAS ‘ROE’ DECISION CORRECT? “My view of the judicial function, Senator Feinstein, does not allow me to answer that question,” he said. “I have a personal view on the subject of abortion, as I think you know. But I have not done what I think the judicial function would require me to do in order to ascertain whether the court got it right as an original matter.”
He added, “I have had no particular reason to go back and look at whether (Roe) was right or wrong as a matter of law, as I would if I were a judge that was hearing the case for the first time,” he told Feinstein.
The Roe v. Wade decision, he said, “is the law as it was subsequently refined by the (1992) Casey case, and I will follow it.”
So, Feinstein asked, “You believe (Roe) is settled law?”
“I believe so,” Estrada answered.
On another hotly contested topic, the death penalty, Estrada declined to comment on recent rulings by lower federal courts because the issue may come before him as a judge if he is confirmed.
Schumer spent much of the day wrangling with Estrada over his role as a former clerk for Justice Kennedy.
Estrada, who clerked for Kennedy in 1988 and 1989, at Kennedy’s request has occasionally interviewed young lawyers seeking to clerk for the justice.
An article in the Nation magazine, which opposes Estrada’s nomination, cited two anonymous sources who alleged that Estrada had told them they were too liberal to work for Kennedy.
At first Estrada denied that he had said any such thing. As the day went on, he hedged his testimony, saying, “If I said anything remotely on that subject,... it could only have been a joke.”
He added that in screening applicants for Kennedy, “if I think that the person has some extreme view that he would not be willing to set aside in the service of Justice Kennedy, I would make sure that Justice Kennedy would know that.”
‘CREDIBILITY PROBLEMS’ Kennedy, Estrada said, wanted clerks who would “do his bidding,” not rigid ideologues.
After sparring with Estrada on the Nation article, Schumer wondered “if you’re being truthful with this committee” and added, “I think we have some credibility problems here.”
Schumer had made it clear at the beginning of Estrada’s confirmation hearing that he would not be satisfied with any refusal by Estrada to state his views on past cases.
“It’s not enough to say, ‘I will follow the law, senator,’ and expect us to just accept that,” Schumer said. “We need to be convinced that the nominees aren’t far out of the mainstream.”
But Sen. Mitch McConnell, R-Ky., noted that “‘mainstream’ is a very, very subjective determination. What many on the other (Democratic) side might consider mainstream, most Americans consider completely out of bounds.”
OBLIGED TO ANSWER? Schumer’s strategy was to induce Estrada to show that he was “far out of the mainstream” by getting him to state his views on past cases.
In the past, many nominees to the federal bench have declined to state specific views during their confirmation hearings and yet still have been confirmed by the Senate.
“There really are not set protocols,” said University of Chicago law professor Dennis Hutchinson, who once clerked for Supreme Court Justices Byron White and William O. Douglas.
He points out that the Senate didn’t put any substantive questions to judicial nominees in person until 1958 with Potter Stewart’s nomination to the Supreme Court.
“Estrada — or anyone else — isn’t obliged to detail his views,” Hutchinson said. “The record, such as it is, must speak for itself, because the more specific he becomes, the more he risks appearing to prejudge issues.”
For Estrada, the price of not detailing his views may be not getting confirmed — since for now it appears Senate Democrats have enough votes to filibuster his nomination.