With the Democratic filibuster of the appeals-court nomination of Miguel Estrada continuing today in the Senate, White House counsel Alberto Gonzales has responded to comments made over the weekend by Sen. Charles Schumer, a leader of the opposition to Estrada. In an appearance on ABC’s This Week With George Stephanopoulos, Schumer claimed, among other things, that Estrada “answered no questions” at his confirmation hearing; that “no judicial nominee that I’m aware of for such a high court has ever had so little of a record”; that “there is no legal precedent” against turning over Justice Department documents Estrada wrote while working in the Solicitor General’s office; and that Democrats “are not filibustering” the nomination. In his letter to Schumer, seen in its entirety below, Gonzales responds to each of those points, as well as some others. — Byron York
February 24, 2003
Dear Senator Schumer:
Based on your public comments yesterday, I am concerned that you may have inaccurate and incomplete information about Miguel Estrada’s qualifications and about the historical practice with respect to judicial confirmations. Therefore, I write to respectfully reiterate and explain our conclusion that you and certain other Senators are applying an unfair double standard — indeed, a series of unfair double standards — to Miguel Estrada.
First, your request for confidential attorney-client memoranda Mr. Estrada wrote in the Office of Solicitor General seeks information that, based on our review, has not been demanded from past nominees to the federal courts of appeals. We are informed that the Senate has not requested memoranda such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department — including the seven nominees who had previously worked in the Solicitor General’s office. Nor have such memoranda been demanded from nominees in similar attorney-client situations: The Senate has not demanded confidential memoranda written by judicial nominees who had served as Senate lawyers, such as memoranda written by Stephen Breyer as a Senate counsel before Justice Breyer was confirmed to the First Circuit in 1980. Nor has the Senate demanded confidential memoranda written by judicial nominees who had served as law clerks to Supreme Court Justices or other federal or state judges. Nor has the Senate demanded confidential memoranda written by judicial nominees who had worked for private clients.
The very few isolated examples you have cited were not nominees for federal appeals courts. Moreover, those situations involved Executive Branch accommodations of targeted requests for particular documents about specific issues that were primarily related to allegations of malfeasance or misconduct in a federal office. We respectfully do not believe these examples support your request. Our conclusion about the general lack of support and precedent for your position is buttressed by the fact that every living former Solicitor General (four Democrats and three Republicans) has strongly opposed your request and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. In short, the traditional practice of the Senate and the Executive Branch with respect to federal appeals court nominations stands in contrast to your request here and supports our conclusion that an unfair double standard is being applied to Miguel Estrada. (Also, contrary to your suggestion yesterday, please note that no one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001.)
Second, you suggested that “no judicial nominee that I’m aware of, for such a high court, has ever had so little of a record.” I respectfully disagree. Miguel Estrada has been a very accomplished lawyer, trying cases before federal juries, briefing and arguing numerous appeals before federal and state appeals courts, and arguing 15 cases before the Supreme Court, among his other significant work. His record and breadth of experience exceeds that of many judicial nominees, which is no doubt why the American Bar Association — which you have labeled the “gold standard” — unanimously rated him “well-qualified.” In noting yesterday that Mr. Estrada’s career had been devoted to “arguing for a client,” you appeared to imply that only those with prior judicial service (or perhaps “a lot of [law review] articles”) may serve on the federal appeals courts. But five of the eight judges currently serving on the D.C. Circuit had no prior judicial service at the time of their appointments. Indeed, Supreme Court Justices Rehnquist, White, and Powell — to name three of the most recent — had not served as judges before being confirmed to the Supreme Court. And like Mr. Estrada, two appointees of President Clinton to the D.C. Circuit (Judge David Tatel and Judge Merrick Garland) had similarly spent their careers “arguing for a client,” but were nonetheless confirmed.
As the Chief Justice noted in his 2001 Year-End Report, moreover, “[t]he federal Judiciary has traditionally drawn from a wide diversity of professional backgrounds.” The Chief Justice cited Justice Louis Brandeis, Justice John Harlan, Justice Byron White, Judge Thurgood Marshall (as nominee to the Second Circuit), Judge Learned Hand, and Judge John Minor Wisdom as just a few examples of great judges who had spent virtually their entire careers “arguing for a client” before becoming Supreme Court Justices or federal appeals court judges. As these examples show, had the “arguing for a client” standard been applied in the past, it would have deprived the American people of many of our most notable appellate judges. Based on our understanding, this standard has not been applied in the past. This further explains why we have concluded that an unfair double standard is being applied to Miguel Estrada.
Third, you stated that “when you went to those hearings, Mr. Estrada answered no questions.” The record demonstrates otherwise. Mr. Estrada answered more than 100 questions at his hearing (and another 25 in follow-up written answers). He explained in some detail his approach to judging on many issues, and did so appropriately without providing his personal views on specific legal or policy questions that could come before him — which is how previous judicial nominees of Presidents of both parties have appropriately answered questions. Indeed, at his hearing, Mr. Estrada was asked and answered more questions, and did so more fully, than did President Clinton’s appointees to this same court. Judge David Tatel was asked a total of three questions at his hearing. Judges Judith Rogers and Merrick Garland were each asked fewer than 20 questions. The three appointees of President Clinton — combined — thus answered fewer than half the number of questions at their hearings that Mr. Estrada answered at his hearing. What is more, like Mr. Estrada, both Judge Rogers and Judge Garland declined to give their personal views on disputed legal and policy questions at the hearing. Judge Rogers refused to give her views when asked about the notion of an evolving Constitution. And Mr. Garland did not answer questions about his personal views on the death penalty, stating that he would follow precedent. In short, we believe that your criticism of Mr. Estrada’s answers at his hearing reveals that another unfair double standard is being applied to Mr. Estrada.
Fourth, you stated that the Founding Fathers “came to the conclusion that the Senate ought to ask a whole lot of questions” of judicial nominees. We respect the Senate’s constitutional role in the confirmation process, and we agree that the Senate should make an informed judgment consistent with its traditional role and practices. But your characterization of the Senate’s role with respect to judicial nominations is not consistent with our reading of historical or traditional practice. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of “unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist 76. The Framers anticipated that the Senate’s approval would not often be refused unless there were “special and strong reasons for the refusal.” Id. Moreover, the Senate did not hold hearings on judicial nominees for much of American history, and the hearings for lower-court nominees in modern times traditionally have not included the examination of personal views that you have advocated. (My letter of February 12, 2003, to Senators Daschle and Leahy contains more detail on this point.) Indeed, just a few years ago, Senator Biden made clear, consistent with the traditional practice, that he would vote to confirm an appeals court judge if he were convinced that the nominee would follow precedent and otherwise was of high ability and integrity.
In short, it appears that you are seeking to change the Senate’s traditional standard for assessing judicial nominees. We respect your right to advocate a change, but we do not believe that the standard you seek to apply is consistent with the Framers’ vision, the traditional Senate practice, or the Senate’s treatment of President Clinton’s nominees. Rather, we believe a new standard is being devised and applied to Miguel Estrada.
Fifth, you stated yesterday that a “filibuster” is not an appropriate term to describe what has been occurring in the Senate. We respectfully disagree. Democrat Senators have objected to unanimous consent motions to schedule a vote, and they have indicated that they will continue to do so. That tactic is historically and commonly known as a filibuster, and is a dramatic escalation of the tactics used to oppose judicial nominees. Indeed, in 1998, Senator Leahy stated: “I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don’t like somebody the President nominates, vote him or her down. But don’t hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators.” 144 Cong. Rec. S6522 (June 18, 1998). In our judgment, the tactics now being employed again show that Miguel Estrada is receiving differential treatment.
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As I have said before, I appreciate and respect the Senate’s constitutional role in the confirmation process. You have expressed concern that you do not know enough about Mr. Estrada’s views, but you have not submitted any follow-up questions to him. We respectfully submit that the Senate has ample information and has had more than enough time to consider questions about the qualifications and suitability of a nominee submitted more than 21 months ago. Most important, we believe that a majority of Senators have now concluded that they possess sufficient information on Mr. Estrada and would vote to confirm him. We believe it is past time for the Senate to vote on this nominee, and we urge your support.
Sincerely, /s/ Alberto R. Gonzales Counsel to the President
Copy: The Honorable Bill Frist The Honorable Thomas A. Daschle The Honorable Orrin Hatch The Honorable Patrick Leahy