Politics: Miguel Estrada Nomination
With Nan Aron
Alliance for Justice President
Thursday, March 6, 2003; 2 p.m. ET
Republicans failed today in an initial attempt to break the month-long Democratic filibuster blocking a vote on the hotly contested judicial nomination of Miguel Estrada but vowed to continue pressing for confirmation, even as they moved on to other business.
The vote was 55 to 44 in favor of limiting debate, five votes short of the 60 needed to end the filibuster and force a final vote on Estrada's nomination to the U.S. Court of Appeals for the District of Columbia.
Alliance for Justice President Nan Aron was online to discuss the fight in the Senate over Estrada's nomination.
The Alliance for Justice seeks to "advance the cause of justice for all Americans, strengthen the public interest community's ability to influence public policy, and foster the next generation of advocates." The Alliance is currently supporting the Democratic filibuster.
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Nan Aron: Good afternoon, it's a pleasure to be with you all to talk about this important issue. This morning, the Senate voted against closing off debate on Miguel Estrada's nomination to the District of Columbia Court of Appeals. I'd love to hear questions about this and other judicial nominations currently under consideration.
Harrisburg, Pa.: Isn't a large part of the problem that Mr. Estrada has avoided indicating how he feels on many major judicial issues? Sometimes it is better to take a position and stand for something. In his efforts to avoid controversy, hasn't he in fact has created greater controversy?
Nan Aron: That's absolutely right. Senate Democrats repeatedly invited Mr. Estrada to share his views on important social and legal issues. It is entirely appropriate for the senators to ask a nominee for his opinions, so long as they don't ask how he'll rule on upcoming cases.
Before someone is confirmed to the second highest court in the country, the senators and the American public need to be fully informed about the nominee's record.
By refusing to provide this information, Estrada has denied the Senate the very information they need to fulfill their constitutional responsibility.
Washington, D.C.: Do you support the filibuster of other judicial nominees by the Senate in the coming months? If so, what other nominees do you believe should be filibustered? Charles Pickering? Others?
Nan Aron: The filibuster is a legitimate tool for the Senate minority to prevent the administration and its allies in Congress from packing the courts. To be confirmed, a nominee has to have an excellent record in the law, show honesty and integrity, and have a demonstrated commitment to equal justice. The Senate has a responsibility to defeat any nominees falling short of these standards by any means necessary.
Filibusters may also be appropriate when the administration or the Senate majority disregard established rules and procedures. As a substantive matter, Pickering and Owen have both already been defeated, if the Senate reconsiders their nominations, they should be defeated again.
Arlington, Va.: I am a big fan of your organization and have long believed judicial nominees are the major difference between the parties. That said, however, I wonder if Estrada is worth wasting this much potential political capital over. How many more times can progressives oppose nominees before the public and political allies grow weary of the fight? Estrada, while clearly a stealth candidate, is also recognized as a well-respected attorney who was given the stamp of approval by the ABA. Isn't this a lot of trouble to fight over a candidate to end up on the D.C. Circuit, which rarely hears cases involving civil rights, abortion, etc.?
Nan Aron: Thank you for your kind words about our organization. This fight is extremely important because the D.C. Circuit, considered the second most important court in the country, hears many of the country's most important cases involving environmental, consumer protection, and workplace statutes. It also has a critically important role in the interpretation of the Federal Voting Rights Act.
The Court is now evenly divided between Republican and Democratic appointees. This is all the more reason for the Senate to scrutinize any nominee to this court.
As for the ABA rating, as Senator Reid pointed out so forcefully on the Senate floor, Estrada's ABA evaluation was conducted by Fred Fielding. Among other partisan activities, Fielding recently served as Counsel to the Bush/Cheney transition team, and currently sits on the board of an organization that has aggressively promoted the confirmation of President Bush's nominees, including Estrada. His ABA rating must be considered in that light.
Washington, D.C.: Why does your group fail to distinguish between the personal views of a judicial nominee and the views of his or her clients? I'm a lawyer in private practice, but I have often made arguments in judicial fora on behalf of clients that do not represent my own personal opinions. Yet you repeatedly criticize judicial nominees for arguments made in briefs filed on behalf of clients.
Nan Aron: We consider, and urge Senators to consider the totality of any nominee's record.
We sometimes have clear written evidence of a nominee's views, such as in speeches, law review articles, and past decisions a nominee may have authored as a judge. When we look at a nominee's record as an advocate, we also look for evidence that the arguments advanced by the nominee are ones in which he or she believes.
For example, Timothy Tymkovich, nominated to the 10th Circuit, defended the State of Colorado's anti-gay rights constitutional amendment in Romer v. Evans. After losing that case in the Supreme Court, he sharply criticized the ruling in a law review article.
As a government lawyer, Ninth Circuit nominee Carolyn Kuhl went beyond her role in simply advocating the government's position by aggressively pushing within the Justice Department to change its position and support tax-exempt status for Bob Jones University, despite its racially discriminatory policies. She was also praised by a superior for taking the initiative in advocating that the Reagan administration argue for the reversal of Roe v. Wade in a case in which the constitutionality of abortion rights was not at issue.
Finally, as a third example, Jeffrey Sutton, nominee to the Sixth Circuit, has aggressively sought out clients and cases to push his states' rights legal agenda and dismantle critical civil rights protections. Although he has claimed at his hearing that he was merely representing his clients zealously, he has been quoted on other occasions as admitting "I love this Federalism stuff."
Arlington, Va.: Should the Senate have access to all of the information about the nominee, including his legal memos, that the Administration had?
Nan Aron: Yes, of course they should. Our Constitution assigns the President and the Senate co-equal responsibility in confirming nominees to the federal bench. Federal judges serve for life, and their influence extends well beyond their appointing president's term. There is ample precedent for the release of this type of information, and the Senate is correct in seeking it before a vote.
Arlington, Va.: You say that "the filibuster is a legitimate tool for the Senate minority to prevent the administration and its allies in Congress from packing the courts." How do explain the fact that the filibuster has never before been used to block a judicial nomination in the country's history? And if it's merely a "legitimate tool" to accomplish a goal "by any means necessary," wasn't the segregationists' use of the filibuster to block civil rights legislation equally legitimate?
Nan Aron: While there has been only one successful filibuster of a judicial nomination, the nomination of Abe Fortas to be Chief Justice of the Supreme Court, during the Clinton years there were repeated attempts to filibuster Court of Appeals nominees, in some cases by the same senators who are now claiming that the tactic is unprecedented. Even Majority Leader Bill Frist voted against cloture in the debate over the nomination of Richard Paez to the Ninth Circuit.
Arlington, Va.: Has your organization ever opposed the nomination of a judge appointed by a Democratic President?
Nan Aron: Yes. For example, the Alliance for Justice opposed President Clinton's nomination of Ted Stewart for a District Court seat in Utah and that of Barbara Durham, another Clinton nominee to the Ninth Circuit.
Washington, D.C.: Is the Constitution violated if the Senate's rules prevent it from providing its advice and consent?
Nan Aron: No. As Georgetown University Law Professor and eminent constitutional scholar Mark Tushnet wrote in a Letter to the Editor in today's Washington Post, "the Constitution's text gives the Senate the power to 'determine the rules of its proceedings,' so a filibuster conducted under the Senate's rules is hardly 'anti-Constitution.'"
Alexandria, Va.: Didn't the Republicans start this process of playing politics with the courts? Didn't Republican Senators block many of President Clinton's qualified nominees, including blacks and Latinos, from being confirmed to the bench?
Nan Aron: Yes. Presidents Reagan and Bush sought to pack the courts with young, conservative ideologues. By contrast, Clinton selected centrist nominees. Even then, many of these candidates never even received a hearing. This group included a number of extremely qualified Latinos.
The Senate Republicans and the President now seek to benefit from the abuses of the past by attempting to fill seats they worked to keep open with Bush's extremist nominees beholden to big business and hostile to the environment and civil rights.
Mt. Lebanon, Pa.: Who is Miguel Estrada and why -- outside of the political and chattering classes in D.C. -- does anyone care? I know I don't. OK, well maybe a little bit. Still, I bet my neighbors don't. Thanks much.
Nan Aron: For the answer to this, and other questions about Estrada and other judicial nominees, please take a look at our website independentjudiciary.com. There is an abundance of information including reports and opportunities to sign up for email updates from the Alliance for Justice.
Thanks so much for sending in your questions, and for your interest in the issue!
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