September 23, 2010

Estrada for DC Circuit; Today’s Radical Nominees

CFJ Executive Director Curt Levey on Miguel Estrada and the five radical nominees on today’s Judiciary Committee agenda:

Democrats have done a lot of complaining in recent weeks about the supposedly slow pace of judicial confirmations. As today’s Senate Judiciary Committee meeting vividly illustrates, President Obama has contributed to the slow pace by selecting a number of nominees whose views and records are far outside the American mainstream.

On today’s Judiciary agenda were five of Obama’s most controversial judicial nominees: Goodwin Liu (9th Circuit), Robert Chatigny (2nd Circuit), Louis Butler (W. District of WI), Edward Chen (N. District of CA), and Jack McConnell (District of RI). Four of the five were voted out of committee on party line votes, while a vote on Chatigny was postponed due to the loss of a quorum. The Committee for Justice has explicated the five nominees’ troubling records in previous e-mails, but for an excellent summary of all five nominees in one place see the recent release by Judiciary Committee Republicans.

Radical nominees are not the only reason why Democrats’ blaming of Senate Republicans for the slow pace of confirmations is misplaced. As CFJ noted last week, “those unhappy with the Obama confirmation rates should be pointing their fingers . . . at President Obama and the Democratic Senate leadership for making judicial nominations a low priority.” Moreover, as Judiciary Ranking Member Jeff Sessions pointed out on the Senate floor yesterday,
“Allegations of ‘unprecedented’ obstruction and delay have been bandied about by some of our colleagues and their allies in the press. But the reality is, Democrats’ systematic obstruction of judicial nominees during the Bush Administration was unprecedented then and it is unmatched now.”
Sen. Sessions went on to painstakingly detail Democratic obstruction nominee by nominee, discussing more than a dozen of Bush’s blocked circuit court nominees and noting that
“Perhaps the most disturbing story was that of [DC Circuit nominee] Miguel Estrada … He waited sixteen months just for a hearing … After almost two-and-a-half years in limbo and a protracted six-month-long filibuster battle, Mr. Estrada withdrew his name … To this day, I remain baffled as to why such a fine nominee was treated so poorly, his character assassinated, and his nomination ultimately blocked for no reason.”
What Sessions didn’t mention were the Democratic Judiciary Committee memos which revealed that the party’s opposition to Estrada was based on concern that he would eventually become the first Hispanic Supreme Court Justice. Understandably, obstruction of Estrada remains the deepest wound from the nomination battles of the Bush years. As Roll Call pointed out yesterday,
“Estrada’s failed nomination is a frequent GOP talking point when discussing the highly political confirmation process, and Sessions charged the Democrats’ work to kill his nomination and others during President George W. Bush’s tenure is the cause for so many lower court vacancies nationwide.”
Despite the high profile and importance of the circuit to which Estrada was nominated, President Obama has not tried to fill its two vacancies. Presumably, the White House has been unable to find acceptable DC Circuit nominees that it believes can win confirmation.

The good news is that the President has an opportunity to solve the DC Circuit problem with a dramatic gesture that would also go a long way to heal the Bush-era wounds that have left the judicial confirmation process highly politicized and the GOP in no mood to make confirmation easy for Obama’s nominees. The dramatic gesture we have in mind is the nomination of Miguel Estrada to one of the vacant DC Circuit seats.

By nominating Estrada, the President would ensure quick confirmation of an extraordinarily qualified nominee to fill what is arguably the most important judicial vacancy in the nation. Even more importantly, Obama would be sending a powerful, highly visible signal of bipartisanship that Senate Republicans would be unable to ignore either politically or personally.

If it sounds like a crazy idea, consider that George W. Bush did the same thing – three times in fact – to encourage bipartisanship. Among President Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton appointee to a lower court, and Roger Gregory, an unconfirmed Clinton nominee. Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth Circuit in 2008. All three nominees were quickly confirmed.

Skeptics on the right will undoubtedly say that Obama is too rigidly ideological to nominate a conservative to the circuit courts. Skeptics on the left will say that Obama would be foolish to do so. But consider what the President would gain. Though Obama would be “giving up” a circuit court seat, the resulting good will and political pressure for reciprocal gestures would virtually guarantee easier confirmation for at least several of his judicial nominees.

Even putting judges aside, Obama would gain politically by replacing his talk about bipartisanship with highly visible and indisputable evidence of bipartisanship. Finally, keep in mind that the Democrats’ original reason for blocking Estrada – fear that he would become the first Hispanic Supreme Court Justice – is gone now that Sonia Sotomayor is on the Court.

CFJ doesn’t speak for Mr. Estrada, but the conventional wisdom is that he has no desire to subject himself to a repeat of the character assassination that accompanied his original nomination. But he need not worry. With bipartisan support, the confirmation process would be more like a love fest this time around, especially in the wake of Estrada’s letter endorsing Elena Kagan’s Supreme Court nomination and Kagan’s glowing testimony about Estrada during her confirmation hearings this summer. Kagan testified that Estrada “is a great lawyer and a great human being” and is “qualified to sit as an appellate judge [and] as a Supreme Court Justice.”

At this summer’s hearings, Kagan seemed genuinely embarrassed that she had not spoken out in support of Estrada – her friend since they attend Harvard Law School together – when he was nominated by President Bush. We’re guessing that Justice Kagan is one Democrat who would be thrilled to see Estrada renominated and confirmed to the DC Circuit.