Miguel Estrada is the first Bush administration appeals court nominee to come before the full Senate for a vote in this Congress. Estrada was approved 10-9 by the Senate Judiciary Committee on a party-line vote even though senators had raised important concerns about his record and judicial philosophy on key issues, and in spite of the fact that at his hearing last year Estrada had refused to answer many questions about his jurisprudential views on important Supreme Court precedents and fundamental constitutional questions. He refused to name even a single Supreme Court decision with which he disagrees. It is impossible for senators to carry out their constitutional duty to review judicial nominees’ fitness for the federal bench when they are denied the basic information necessary to evaluate the kind of judges nominees would be.
Estrada’s silence on fundamental constitutional questions is part of an apparent strategy carefully calculated to prevent nominees’ extremist views from becoming known before they are confirmed for lifetime positions on our highest courts. Federalist Society members (like Estrada) have been advised not to answer such questions, and have been told that such a stonewalling strategy worked well for Supreme Court Justice Antonin Scalia (see “Judge Nominees Told to Speak Very Softly,” Legal Times, April 22, 2002). Administration officials have reportedly instructed nominees not to discuss any past or present court rulings about which they have not previously expressed their views in writing. (Legal Times, September 30, 2002)
Estrada and some of his supporters have claimed that it would be unethical for him to answer such questions. Other controversial administration judicial nominees have not tried to hide behind that specious claim. For example, Michael McConnell, who was confirmed to an appeals court seat last fall, freely discussed his understanding and approach to major Supreme Court rulings and doctrines.
The administration has also refused to give senators memos that Estrada wrote while working for the Solicitor General’s office dealing with important issues that came before the Supreme Court. There is ample precedent for disclosure: for example, in 1987 the Senate was given access to memos Supreme Court nominee Robert Bork had prepared while he was Solicitor General. As the New York Times has editorialized, “The Senate should not be bullied into making this important decision in the dark....The administration has no legal basis for its refusal to supply these documents.” (September 25, 2002 Editorial)
Miguel Estrada’s confirmation has been opposed by the Congressional Hispanic Caucus, the Congressional Black Caucus, and a wide range of public interest organizations, including several leading Hispanic groups, in part because he has dismissed concerns about the continuing effects of discrimination and has demonstrated little concern for the impact of racial profiling or laws that have a disproportionate impact on minority groups. Marisa J. Demeo, regional counsel and spokesperson for the Mexican American Legal Defense and Educational Fund, said recently:
If the Senate confirms Mr. Estrada, his own personal American dream will come true but the American dreams of the majority of Hispanics living in this country will come to an end through his future legal decisions. When young, less fortunate Latinos try to overcome obstacles placed before them to attend college through affirmative action programs, Mr. Estrada will crush the American dream of higher education on these young Latinos. When police racially target young Latinos or day laborers living in the urban centers of our country, the American dream of living free from police harassment will end when their claims are brought before Mr. Estrada. When immigrant Latinos come to MALDEF for legal protection and advocacy, Mr. Estrada will try to remove MALDEF as an advocate of these disempowered Latinos who do not have the resources to hire private attorneys, smashing their dreams that America is a place where all can be treated fairly and can obtain justice. Not confirming Mr. Estrada will shut a door to his personal dream to advance himself, but confirming Mr. Estrada will shut the door to the American dream of Latinos throughout this country through his ideological legal decisions.