Bench Memos

D.C. Circuit Nominee Pillard’s Rather Belated Endorsement of Estrada

In her response (submitted today) to a post-hearing written question, D.C. Circuit nominee Cornelia Pillard found it convenient to gratuitously volunteer her supposed view that Miguel Estrada—nominated to the D.C. Circuit by President Bush in 2001 but filibustered by Senate Democrats—“was well qualified to serve on the D.C. Circuit and should have been confirmed.” Gee, what a moderate she must be.

Here’s the Q&A (emphasis added):

[From Senator Grassley:] Miguel Estrada has a professional background similar to yours. Much of the objection to his nomination was focused on the request that internal Solicitor General memoranda be provided to the Committee. Do you think that was an appropriate request, and would it be appropriate for you to provide similar materials to the Committee in support of your nomination? Please explain.

Response: Miguel Estrada and I were colleagues in the Office of the Solicitor General, and we were law school contemporaries at Harvard and fellow editors on the Harvard Law Review. Based on what I know of Mr. Estrada, I do not believe there was any need to review any internal Solicitor General memoranda to conclude that he was well qualified to serve on the D.C. Circuit and should have been confirmed.

Although I have not studied the question, I appreciate that there are strong reasons to protect the confidentiality of the decision making processes in the Solicitor General’s Office. As many former Solicitors General have attested, candid advice on difficult and often controversial legal questions is facilitated by the assurance that the advice will be kept confidential. Any decision about disclosure of internal memoranda of the Office of the Solicitor General, were they sought, would properly rest with the executive branch. The executive branch position presumably would be informed by an assessment of the desirability and lawfulness of maintaining the long-standing policy of confidentiality of such memoranda.

Unfortunately for Estrada, back when it might have mattered, Pillard did not see fit to sign the September 19, 2002, letter in support of his nomination submitted by lawyers, with “varying ideological views and affiliations that range across the political spectrum,” who served with him in the Office of the Solicitor General.

(One might argue that even Pillard’s apparent current endorsement of Estrada’s nomination doesn’t mean what the reader might readily take from it. Perhaps Pillard means only that there was a sufficient basis on which someone might have concluded, without reviewing internal OSG memoranda, that Estrada was “was well qualified to serve on the D.C. Circuit and should have been confirmed.” But that would simply mean that Pillard is being remarkably deceptive in another respect.)

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