Appeals court nominee Miguel Estrada, who is an active member of the far-right Federalist Society but has no judicial record for senators to consider, 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.
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 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. 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.
Estrada and some of his supporters have claimed that it would be unethical for him to answer such questions. But some 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. Timothy Tymkovich, who was recently confired to an appeals court seat in spite of significant opposition, answered a key question that Estrada refused to answer, identifying several Supreme Court rulings with which he disagreed.
In addition, the administration has refused to release memos Estrada wrote at the Justice Department that could provide senators with additional information with which to evaluate his nomination. The Bush administration and its allies have frequently asserted that Democratic senators have no right to memos Estrada prepared while working in the Solicitor General’s office, claiming that a demand for such information is inappropriate, unethical, and unprecedented. In fact, the administration is trying to create a completely new policy of executive privilege, a policy that has no precedent and no legal standing. Estrada himself has told senators that he would be willing to provide senators with those memos and to discuss them but the Bush administration refuses to permit their release.
Sen. Patrick Leahy devastatingly refuted the administration’s claims in a February 12 floor speech during which he released correspondence between the Judiciary Committee and earlier Republican and Democratic administrations demonstrating that the same kind of information the Bush administration has declared off-limits has in fact been shared with senators on a regular basis to allow them to fully evaluate nominees to important judicial and other administration positions.
During that speech, Leahy said:
The Senate has requested, and past Justice Departments have provided, similar memoranda such as memoranda related to appeals, certiorari petitions, and amicus curiae – the decision to join a case as a friend of the court – written by attorneys of the Department of Justice. They have done this in connection with the nominations of Robert Bork to become Associate Justice of the Supreme Court; William Bradford Reynolds, Assistant Attorney General for the Civil Rights Division, to become Associate Attorney General; Benjamin Civiletti, nominated by President Carter to become Attorney General; Stephen Trott, nominated to become a judge in the Ninth Circuit; and then-Justice William Rehnquist, who was nominated by President Reagan to become Chief Justice – among others.
(Congressional Record, February 12, 2003, p. S2252)
Leahy also cited an example from the current administration: legal memoranda from the White House Counsel’s office released in connection with the nomination of Jeffrey Homestead to be the Assistant Administrator of the Environmental Protection Agency.
In addition, Leahy effectively demolished Republican claims that the documents Estrada wrote at the Solicitor General’s office were somehow protected by attorney-client privilege. He noted that Circuit Courts in the Seventh, Eighth, and DC Circuits have all agreed that attorney client privilege does not apply to a government attorney, and that Viet Dinh, who now serves as Assistant Attorney General for Legal Policy, said five years ago that a government lawyer’s “employer is not a single person but the United States of America” and more specifically that the government as an employer included the U.S. Senate when it is trying to fulfill its constitutional duties. Yet now, Dinh and his colleagues in the administration are trying to take the Senate out of that equation and prevent senators from having access to information that would allow them to fulfill their constitutional duties.
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)