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Estrada's Omertà

By Michael Kinsley
Posted Thursday, Feb. 13, 2003, at 1:19 PM ET
Estrada playing mum

Like gangsters taking the Fifth, nominees for federal judgeships now have their reason for staying mum down to a mantra. Repeat after me: "My view of the judicial function, Senator, does not allow me to answer that question." Miguel Estrada, President Bush's nominee for the D.C. Circuit Court of Appeals, used variations on that one many times in refusing to express any opinion on any important legal topic during Judiciary Committee hearings last fall. Democrats are now trying to block the Estrada nomination with a filibuster.

Estrada's "view of the judicial function" is shared by President Bush, congressional Republicans, and conservative media voices hoarse with rage that Democratic senators want to know what someone thinks before making him or her a judge. The Estrada view is that judges should not prejudge the issues that will come before them. As Estrada amplified in his testimony, "I'm very firmly of the view that although we all have views on a number of subjects from A to Z, the job of a judge is to subconsciously put that aside and look at each case … with an open mind."

Obviously, Estrada's real reason for evasiveness is the fear that if some senators knew what his views are, they would vote against him. However, this kind of high-minded bluster is a powerful weapon in the ongoing judicial wars. Over the past couple of decades, talk like this has intimidated many a senator who aspires to a reputation for thoughtfulness. And it does sound swell. Until you think about it.

Potential judges should not reveal their views on legal issues because a judge should have an open mind? Hiding your views doesn't make them go away. If the problem is judges having views on judicial topics, rather than judges expressing those views, then allowing people to become judges without revealing their views is a solution that doesn't address the problem. And if the problem is judges who fail to put their previous views aside, rather than judges having such views to begin with, then allowing judicial nominees to hide those views until it's too late is still a solution that is logically unrelated to the problem.

So, Estrada's Rule of Silence does not solve the problem. And the supposed problem—of "prejudging"—makes no sense either. To see why, consider—or reconsider—Justice Clarence Thomas. In his 1991 confirmation hearings, Thomas testified that he had no "personal opinion" about Roe v. Wade, probably the most controversial Supreme Court decision of the 20th century. In 1992, Justice Thomas joined in a minority opinion calling for Roe to be overturned. By 2000 he was writing that the Roe decision was "grievously wrong" and "illegitimate" and part of "a particularly virulent strain of constitutional exegesis" and generally not something he cared for the least little bit.

This does not prove that Thomas was lying under oath in claiming that he hadn't prejudged Roe in 1991 (though no reasonable person could doubt that). It does prove that Thomas had prejudged Roe in 1992. But this is a point that Justice Thomas needn't bother to lie about since no one objects. It's perfectly OK for a sitting judged to have and express views about an issue that comes before his or her court. That is his job.

In fact it's inevitable that anyone who has been an appellate judge for a while will have published opinions that touch on many of the issues he or she must decide in the future. There is not even an expectation of open-mindedness. Although a willingness to reconsider your own assumptions is regarded as admirable, no one is accused of prejudging a case just for ruling the same way this year as last year. Quite the opposite: Intellectual consistency is the hallmark of a fine legal mind. And following precedent is a sign of judicial professionalism.

Most legal rulings come from judges who have been on the bench for a while. If that is not a problem, why is it a problem if they have thought about and reached conclusions on some important legal issues before they join the bench? The answer is that it is not a problem. It ought to be a problem if a potential judge has not thought about important legal issues and has no views on them. But instead, the problem is how to keep a judgeship candidate's opinions hidden until he or she is safely confirmed for a lifetime appointment, and the phony issue of "prejudging" is a strategy for doing that.

Judgeship nominations bring out the hypocrite in politicians of both parties, but the Republican hypocrisy here is especially impressive. When Bill Clinton was appointing judges, the senior Judiciary Committee Republican, Sen. Orrin Hatch, called for "more diligent and extensive … questioning of nominees' jurisprudential views." Now Hatch says Democrats have no right to demand any such thing. President Bush fired the American Bar Association as official auditor of judicial nominations because the ABA gave some Republican nominees a lousy grade. Now Hatch cites the ABA's judgment as "the gold standard" because it unofficially gave Estrada a high grade.

The seat Republicans want to give Estrada is only open because Republicans successfully blocked a Clinton nominee. Two Clinton nominations to the D.C. Circuit were blocked because Republicans said the circuit had too many judges already. Now Bush has sent nominations for both those seats. Hatch and others accuse Democrats of being anti-Hispanic for opposing Estrada. With 42 circuit court vacancies to fill, Estrada is the only Hispanic Bush has nominated. Clinton nominated 11, three of whom the Republicans blocked.

I could go on and on. Which is just what Senate Democrats are doing.

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Michael Kinsley is a columnist for Time and the founding editor of Slate.
Photograph of Miguel Estrada by William Philpott/Reuters.
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Remarks From The Fray:

I'm not sure that Estrada is the right guy to pick this fight over, but it sure is a fight worth picking. Judicial nominees have no "right to remain silent." They have to commit a crime to get that. But Democrat senators are wasting their time trying to pry actual views on issues out of Bush's nominees.

They should instead zero in on the nominees' views on stare decisis--the principle that courts should follow prior precedents in all but certain limited circumstances. The nominees should all be relentlessly grilled over their position on stare decisis. For example, what would convince them that a prior precedent of the Supreme Court should be disregarded? Not so coincidentally, Roe v. Wade is one such precedent. With savvy grilling on the weight to be given to stare decisis, senators can pretty much walk nominees into taking a position on any issue, and they can't whine that senators are asking them questions about issues that may come before the court.

Bush's stealth nominees must not be allowed to hide their views on issues. After all, we can be sure that Bush knows what they are. Shouldn't we among the unwashed masses also know?

-- TC3

(To reply, click here.)


The reason why nominees (including Clinton/Bush I/Reagan/etc nominees) are reluctant to espouse specific legal positions in a confirmation process has less to do with whether or not they have such positions (which they, as Kinsley points out, undoubtedly do), but rather with how they act as judges. Simply, once a position is announced, under oath, in a confirmation hearing or the like, the judge is more or less "locked in" to such a position once they are on the bench. If they were to change their minds (as reasonable people often do), there would ensue (perhaps justifiably) calls that the Judiciary Committee had been misled, or that the nominee had, in fact, perjured himself during the hearing. This would be unacceptable.

If nominees were required to advocate a specific legal position in a confirmation hearing, the effective result would be the Senate (and, specifically, the Senate Judiciary Committee) setting legal opinion. They could only send to the floor candidates with whom they agreed on specific issues, and those candidates would be required, in order to uphold the integrity of whichever court to which they were appointed, to maintain those views while on the bench. To illustrate:

A majority of the Senate committee favors affirmative action. The committee considers two candidates: one who states, on the record, his legal belief that affirmative action is not unconstitutional; and another who refuses to answer the question. The committee would be greatly inclined to send the former to the floor, knowing that the candidate could be expected to hold that position if such a case were before him (or risk public humiliation as he is called a perjurer). The judge is sent to the floor, and, presumably, confirmed. The committee thus, via the pressure of an oath and public hearing, has effected a legal opinion when that judge rules on affirmative action.

Requiring judges to take legal positions in a confirmation process is, in short, a way around the separation of powers in the constitution. Besides, where would pro-lifers be if Stealthy Souter had not evolved as a jurist since his nomination?

-- your_Fray_nickname

(To reply, click here.)


It should be noted that last term, in Republican Party v. White (2002) 526 U.S. 765, the U.S. Supreme Court faced the question of whether ethical rules prohibiting candidates for elective judicial offices from announcing their views on disputed legal and political issues violated the First Amendment. The court did one of its usual 5-4 splits, with the 5 member conservative majority (Rehnquist, O'Connor, Scalia, Kennedy and Thomas) holding that ethical rules prohibiting candidates for judicial office from discussing their positions on disputed legal issues were unconstitutional. The minority (Stevens, Souter, Ginsburg and Breyer) approved of the "announce clause", as it was called. Of the last five nominees, Kennedy, Souter and Thomas all refused to discuss their positions on controversial legal issues, while Ginsburg and Breyer were more open, avoiding specific questions but being more definite than their predecessors. On the abortion question, for example, Kennedy, Souter and Thomas all agreed that there was a right to privacy in the constitution but refused to take a position on abortion; Ginsburg and Breyer both stated that they believed the right to privacy extended to abortion but refused to answer whether specific regulations would be constitutional.

The point is that, except for Souter, those judges who most refused to express their positions when being appointed to lifetime positions now think it's perfectly fine for elected judges to campaign on disputed legal issues, while those who were more expressive at the time of their appointment don't want elected judges expressing similar opinions during elections. Just what is the difference between elected judges and appointed ones, in the minds of the Supreme Court, at least? I'd rather know what the appointed, lifetime judges think before they're on the bench than the elected ones, who can be removed in the next election.

-- Dameffy

(To reply, click here.)

Kinsley is trying to be too cute here in flagging the supposed hypocrisy of the GOP:

(1) The ABA: Kinsley notes that Bush criticized the ABA selection process, but now Hatch describes the ABA approval as the "gold standard." First, when Hatch referred to the ABA approval as the "gold standard," he was directly quoting Chuck Schumer and ribbing him. Schumer had insisted on the ABA approval process but now dismisses it after it gave Estrada the most favoralbe rating. So if there's any hypocrisy, it's from Schumer, not Hatch.

(2) D.C. vacancies: He notes that two of Clinton appointees to the D.C. Circuit were not approved by the GOP. But I believe that these vacancies opened up during the last year or two of Clinton's second term. It's quite normal for the opposing (majority)party to be slow about judgeship approvals during the last couple of years of a two-term presidency (in hopes that a president from their party will take over). Now, it's unprecedented because (1) Dems are the minority party but are using filibuster to thwart the majority for an appellate judgeship and (2) they've been doing this from the start of Bush's presidency.

(3) Ideology: Republican nominees to the Supreme Court (or guys like Estrada who've been touted as a potential SC nominee) are in a bind because Democrats use an unfair litmus test. If you criticize Roe v. Wade, then you're automatically disqualified. But, as even honest liberal scholars like Akhil Amar acknowledge, Roe v. Wade is not the most coherent legal opinion (even if one is pro-choice). So it's no wonder that GOP nominees stay mum. And no, Republicans don't do the same thing--they obviously prefer conservatives, but they have no litmus tests (see Kennedy, O'Connor, Souter--all of whom were appointed by Reagan or Bush, but ended up affirming Roe).

-- Junky—yard-dog

(To reply, click here.)

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