Mr. Gray has sought to discredit the Democratic filibuster of appeals court nominee Miguel Estrada, who has refused to answer a number of senators’ questions about his judicial philosophy.
As part of that effort, Mr. Gray has cited a statement by Abraham Lincoln to buttress his assertions that senators should not ask judicial nominees about their judicial philosophy. He cites Lincoln saying, "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it." But Gray does not refer to Lincoln’s very next sentence, which fundamentally undermines his basic point: “Therefore, we must take a [person] whose opinions are known.” The lack of knowledge about Estrada’s legal opinions is a central issue in the filibuster against his confirmation.
In fact, the administration and its allies have made it virtually impossible for senators to fully evaluate Estrada’s opinions on a number of important questions about his approach to the law and the Constitution. Administration officials have urged Estrada not to answer questions about any Supreme Court case he has not already commented on in writing. In addition, the administration has flatly refused to release legal memoranda written by Estrada when he worked in the Justice Department, documents that could offer senators important insights into his views about important constitutional questions. Similar documents have been released many times to the Senate Judiciary Committee by both Republican and Democratic administrations.