There seems to be a lot of confusion surrounding the judicial confirmations imbroglio. As luck would have it, I happened to stumble across what appears to be a strategy memo, shedding some light on the opposition to these nominees.
To: Teddy & Tom
From: Your friend for the American way
Re: Talking Points
So far, so good with the filibuster. Here’s a recap of points to emphasize:
We Don’t Know Anything About Miguel Estrada Because He Won’t Answer our Questions . . .
Sure, Mr. Estrada answered over 125 questions during his marathon confirmation hearing, but what does that really tell us? O.K., I know that some of the questions asked were intended to bait Mr. Estrada to ignore the judicial-canons prohibitions regarding announcing how you would decide future cases (for example, Senator Leahy’s question asking whether considering race or gender in hiring or selection would meet the strict scrutiny standard of Adarand v. Pena, despite the fact that this is an open question before the D.C. Circuit), but it was all in good fun. And never mind the fact that despite multiple invitations, few of you have actually submitted written questions to Mr. Estrada. Senator Blanche Lincoln did [note to TD: make sure she loses her parking spot]. Boy, I hope no one ever asks what these “unanswered questions” are . . . that would be a tough one. If that happens, the key is to repeat phrases like “Estrada hasn’t filled out his application.”
If Only He Would Turn Over the Justice Department Memos . . .
Yes, we all know that the memos are probably about as revealing as a burka . . . but that’s why it’s brilliant. You see, the Justice Department knows that they can’t turn them over. But I don’t need to tell you that: you’ve seen the letter signed by every living solicitor general saying what a terrible idea this is. Just keep on citing to the Bork hearings as a precedent, and soon you may be able to call those hearings “fair” without snickering.
Estrada Is A Right-Wing Extremist . . .
Forget everything we said about not knowing anything about Estrada. We know that he’s an extremist. “How?” you may ask. Well, his old boss at the DOJ, Paul Bender, told us so. Yes, this is the same Paul Bender who gave him outstanding reviews, praising his legal analysis, but we can ignore that. And yes, this is the same Paul Bender who was such a liberal lightening rod that career staffers complained to the press that he had a tendency to “impugn people’s work and their motives and their integrity,” but no one really remembers that. And yes, this is the same Paul Bender who was chief counsel to a committee that recommended the abolition of pornography laws, and is thought responsible for the Clinton DOJ’s more liberal position on child pornography. Let’s try not to mention that last one.
Teddy, you seemed concerned about the contradiction here between not knowing anything, and at the same time saying that we know Estrada is an extremist. Just follow TD’s lead: After the last vote, he said both things in the course of the same article, and no one even blinked.
We’re Not Anti-Hispanic or Anti-Woman
Of course we’re not. Who could possibly get that impression? Sure, we call Estrada a “Hispanic Clarence Thomas” and hold press conferences denouncing him as “not really Hispanic,” but that doesn’t make us anti-Hispanic. We’re very pro-Hispanic, so long as we’re sure we can count on you to issue what we deem to be Hispanic decisions.
Some people are stating that we’ve subjected Estrada to a double standard. Whatever you do, don’t let people figure out that you peppered Estrada with over 100 questions because the D.C. Circuit is sooo important, but then when you had another D.C. Circuit nominee before you (who happened to be White), you chose to all-but-ignore him and instead to direct virtually all your questions to a Sixth Circuit nominee. If that comes to light, just blame the fact that there were three nominees before the committee. That really forced you to ask questions only of the Sixth Circuit nominee, after all.
Then there are all those accusations that you treat women candidates differently. Sure, Michael McConnell wrote that Roe is illegitimate and he gets confirmed, while Justice Owen applies Supreme Court precedent and gets voted down in committee. But it serves her right. Doesn’t she understand how she’s supposed to rule? Whatever you do, make sure that people don’t realize that she never actually ruled against Roe and has made it clear that she would uphold it.
Oh, and while we’re on the subject of how the Senate is treating women nominees, could you make sure that Senator Feinstein stops calling Justice Cook “Mrs. Cook?” She did it three times on the floor the other day. Pretty soon, people might start noticing, and that would be embarrassing.
I really don’t know how anyone could honestly accuse the Democrats of being insensitive to minorities. I mean, sure, you opposed the Civil Rights Act, and you are the only party with a former Klansman and three former segregationists in Congress, but that’s all old news. Don’t people realize that when you are the party of Cynthia McKinney and James Moran, sensitivity comes as easy to you as, well, spelling and foreign policy.
Keep up the good work. Soon we’ll be able to fill the bench with people we can count on.
— Robert Alt is a fellow in constitutional studies and Jurisprudence at the Ashbrook Center.