Top-10 Arguments for a Senate Vote on the Estrada Nomination     2/4/2003
By Thomas L., Jipping, J.D.

Senate debate on the nomination of Miguel Estrada may begin on February 5, 2003.

To: Interested Parties
From: Thomas L. Jipping, J.D.
Re: Top-10 Arguments for a Senate Vote on the Estrada Nomination
Date: February 3, 2003

The Senate may begin debating the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit on February 5, 2003. Democrat senators and leftist groups are threatening a filibuster to prevent his confirmation. This memo offers some arguments in response.

First, Democrats once argued that every nominee should have a full Senate vote.

• Sen. Joseph Biden (D-Delaware): "But I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor."
• President Bill Clinton: "I simply ask the United States Senate to … vote on the highly qualified judicial nominees before you, up or down."
• Sen. Richard Durbin (D-Illinois): "We should meet our responsibility. I think that responsibility requires us to act in a timely fashion on nominees sent before us. ... Vote the person up or down."
• Sen. Dianne Feinstein (D-California): "Let's bring their nominations up, debate them if necessary, and vote them up or down."
• Sen. Edward Kennedy (D-Massachusetts): "We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote."
• Sen. Herb Kohl (D-Wisconsin): "Let's not play favorites. These nominees … deserve an 'up or down' vote."
• Sen. Patrick Leahy (D-Vermont): "The Founding Fathers certainly intended that the Senate advise as to judicial nominations, i.e., consider, debate, and vote up or down. They surely did not intend that the Senate, for partisan or factional reasons, would remain silent and simply refuse to give any advice or consider and vote at all."

Second, Democrats claim they have not had time to examine Mr. Estrada's record. They waited 505 days from his May 9, 2001, nomination to give Mr. Estrada a hearing.

Third, vacancies on the D.C. Circuit today are double the level when Democrats claimed a "compelling" case for confirming President Clinton's nominees.

Fourth, Democrats have adopted a guilty-until-proven-innocent standard. They oppose even nominees who insist on the impartiality their judicial oath requires, refusing to make a commitment to decide future cases and issues a particular way. This completely contradicts the standard they demanded under President Clinton. Sen. Tom Harkin (D-Iowa), for example, argued in October 2000 that if nominees had a fair hearing, "my only decision was whether or not they were qualified - not whether they were ideologically opposed to me or to how I feel or what I believe."

Fifth, Democrats now argue that concerns by a few justify refusing to hold a vote at all.

Sixth, Democrats claim on the one hand that they have learned virtually nothing from Mr. Estrada's 24-year academic and professional record. Yet, on the other hand, they apparently know enough to brand him a "far-right" nominee and oppose even taking a vote on his nomination.

Seventh, Democrats claim Mr. Estrada is unqualified since he has no judicial experience. Yet President Clinton appointed individuals without judicial experience to the U.S. Court of Appeals for the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, D.C., and Federal Circuits.

Eighth, Democrats point to critical comments by Paul Bender, Mr. Estrada's supervisor in the 1990s in the Solicitor General's office at the U.S. Department of Justice. Those statements are virtually meaningless for several reasons:

• They were made only after Mr. Estrada's appeals court nomination
• They directly contradict the numerous positive performance reviews that Mr. Bender signed for Mr. Estrada during his Justice Department tenure
• Mr. Bender has refused even to grant interviews for more than a year
• Mr. Bender is the only former colleague to criticize Mr. Estrada; more than a dozen close associates have signed a letter directly refuting Mr. Bender's claims
• Mr. Bender has himself long been very controversial, with a reputation for letting his politics influence his legal judgment

Ninth, the American Bar Association's criteria parallel the issues raised by Democrats and leftist groups. These include "freedom from bias and commitment to equal justice under the law." The ABA unanimously gave Mr. Estrada its highest "well qualified" rating.

Finally, every supposed argument raised by Democrats or leftist groups even potentially relates only to the merits of the nomination, not to whether a vote should occur at all. Senators may vote no for these reasons, other reasons, or no reason at all. But senators must vote.

A copy of this memo with endnotes is available here. CWA’s Top-10 Arguments for a Senate Vote on the Estrada Nomination is available for the Web via Adobe Acrobat. The Acrobat Reader is available for free by clicking the button below.

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