There was never any question, as the Senate Judiciary Committee met Thursday morning, that Miguel Estrada would win approval to a place on the D.C. Circuit Court of Appeals. The Republicans’ new ten-to-nine majority took care of that. But there was a question of how solid Democratic opposition to Estrada would be.
And the answer was: very solid. Confounding some GOP expectations, Democrats kept a united front on Estrada, voting unanimously against him and sending a message that they will exercise similar discipline in the future.
It’s not that Estrada’s opponents pointed to anything in his record that they said disqualified him from the court. Rather, they relied on two key (and somewhat contradictory) arguments in an attempt to show he did not deserve the committee’s support. The first was that Estrada is an ultra-conservative ideologue. The second was that the committee did not know enough about him.
As he did during Estrada’s confirmation hearing last September, New York Democrat Charles Schumer led the attack. Schumer, who once said that Estrada “is like a stealth missile — with a nose cone — coming out of the right wing’s deepest silo,” continued that line of analysis on Thursday, calling Estrada “a stealth candidate, flying under the radar, heading for landing” on the DC Circuit court. “I’m scared of what will happen if he is confirmed,” Schumer concluded.
Others cited Estrada’s friends and associates as evidence that he is too conservative to confirm. Estrada “appears to have been groomed to be an activist appellate judge by well-connected conservative legal activists,” said Patrick Leahy, the committee’s ranking Democrat. “While he counts Justice Scalia, Ken Starr, and Ted Olson among his friends and mentors, any information about his decision-making, values, and judgment has been denied to us.”
For Republicans, the meeting had a Groundhog Day quality to it. First, they had to deal with a Democratic attack on Estrada that they thought they had thoroughly rebutted four months ago. Then, they had to deal with another Democratic attack on Estrada that they thought they had thoroughly rebutted four months ago.
The first involved statements made by a man named Paul Bender, who was Estrada’s former boss in the Justice Department’s Office of Solicitor General. Last year, with opposition to Estrada growing among liberal interest groups, Bender told the Los Angeles Times that Estrada is so “ideologically driven that he couldn’t be trusted to state the law in a fair, neutral way.” At Estrada’s confirmation hearing last September, Democrats cited Bender’s statements as evidence that Estrada simply did not have the temperament to be on the bench.
In response, Republicans cited performance evaluations Estrada had received while at the Justice Department. One read: “States the operative facts and applicable law completely and persuasively…with concern for fairness, clarity, simplicity, and conciseness.” Another read: “Is extremely knowledgeable…Inspires co-workers by example.” The author of those evaluations, Republicans pointed out, was none other than Paul Bender.
Some GOP senators thought that pretty much took care of Bender’s credibility. But they were wrong, because on Thursday, Democrats brought it all up again. First, Sen. Dianne Feinstein based much of her opposition to Estrada on Bender’s criticism. Then Schumer cited statements by “a former supervisor that Mr. Estrada had extreme positions more aligned with his own interests than the government’s.”
That sent Orrin Hatch, the new committee chairman, into a near fit. Democrats were repeating the same old discredited stuff, he said. “They just go back to these idiotic…comments by Mr. Bender,” Hatch said. “They are politically motivated efforts to smear Mr. Estrada and hurt his chances of confirmation.” Just for good measure, Hatch read Bender’s glowing, contemporaneous assessments of Estrada’s fairness and intellect one more time.
The second Groundhog Day moment concerned the Democratic demand that the Justice Department release internal position papers Estrada had written when he worked in the Solicitor General’s office from 1992 to 1997. At last September’s hearing, Democrats had argued that the documents were vital to understanding Estrada’s legal thinking; the Department had refused, calling the papers “highly privileged.”
Last year, Republicans produced a letter from all seven living former Solicitors General — four who had served under Democrats and three who had served under Republicans — saying that the release of such internal deliberative documents would be a terrible idea. In addition, Republicans did extensive historical research to rebut the Democratic argument that there was precedent for such a release. Some of Estrada’s supporters thought that took care of the matter.
But Thursday it all came back. Schumer and others demanded the memos, saying they were the only way to prove whether or not Paul Bender was telling the truth. “If the memos are revealed and prove the supervisor wrong, Mr. Estrada has nothing to fear from their disclosure,” Schumer said. “If they prove the supervisor right, this is something the Senate should know when deciding to confirm Mr. Estrada to the second most powerful court in the land.”
At that moment, the meeting took a different turn from many of the committee’s gatherings last year, when panel was under Democratic control. Rather than go into the whole argument against releasing the memos, Republicans decided it was time to play the ten-to-nine card. GOP senators, who might earlier have been inclined to make lengthy speeches on Estrada’s behalf, stayed quiet while Hatch called for a vote.
In the end, every Republican voted in favor of Estrada, and every Democrat voted against: ten to nine. The Estrada nomination now goes to the full Senate, where it is assured of passing, although with significant Democratic opposition.
The day could not have been a clearer illustration of the difference an election makes. Had Democrats won control of the Senate, Estrada would have never received a vote. On Thursday, the new Republican chairman listened patiently to Democratic objections — and then called the roll.