Republican leaders are quick to accuse Democratic senators of obstructionism for refusing to be bullied into rubber stamping administration judicial nominees. The real obstructionism, however, is the calculated strategy to shield judicial nominees’ extremist views from public knowledge until it is too late to prevent them from taking powerful lifetime positions on the federal courts. Federalist Society members (like Estrada) have been advised not to answer questions about their judicial philosophy, and have been told that such a closed-mouth strategy worked well for Supreme Court Justice Antonin Scalia. Administration officials have reportedly instructed nominees not to discuss any rulings about which they have not previously expressed their views in writing.
There is little doubt about what they are trying to hide: Estrada’s nomination is being aggressively promoted by far-right groups who see the federal courts as their means to return the nation to an era when states’ rights overruled federal efforts to protect individual rights. This is not an abstract theoretical question. This state’s rights approach to the Constitution has been used by the Supreme Court and other judges to permit states or state institutions to fire a woman because she had breast cancer, to deny state workers overtime pay, to undermine pollution controls, and to violate anti-discrimination measures. This is an effort to redefine the constitutional framework that has permitted and supported many of the legal and social justice gains of the past seven decades.
This kind of situation is precisely why our constitutional framework was designed as a system of checks and balances. If senators fail to provide the necessary check in this case, they will set a dangerous precedent for allowing the administration and the Republican majority to railroad lower court and Supreme Court nominees through the Senate without exposing their judicial philosophies to meaningful Senate and public scrutiny. This would make a mockery of the Senate’s constitutional advise and consent obligation, and more importantly, could lead to diminished constitutional protections for Americans for generations to come.