[ Cross-posted also at dailykos]
I’m betting that Miguel Estrada, Bush’s early choice for the DC Circuit, who was filibustered in 2003, is a top choice for Bush now for the Supremes.
Online betting sites give him a pretty good shot (3 to 1 at BetUS.com last Wednesday, Reuters reported, same odds as Emilio Garza), though Gonzales was out in front at some sites. These are possibly better odds than some favorite better known women jurists, such as Janice Brown and Edith Jones (at 8 to 1).
WHY DO I take Estrada seriously?
For one overriding reason, Bush nominated – and Senate Democrats blocked – Mr. Miguel Estrada for the Appeals Court of DC, the 2nd highest court in the nation. (Nomination withdrawn by ME in Sept. 2003) —>
According to a lawyer who worked with him in the late 1980s (both of them as Supreme Court clerks), Estrada’s position on Roe v Wade is a lot more determined than he was willing to let on when Estrada testified to senators.
He is, Estrada’s colleague wrote during the Appeals confirmation process, “that perfect stealth candidate.”
He would “jam the Senate’s ideological radar.”
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Estrada’s way of thinking on flashpoint legal matters – especially on Roe v Wade – was fully cloaked in 2002 and 2003 and remains hidden still – even after his questioning by senators at his confirmation hearing. This very quality makes Estrada now a tantalizing candidate to fill the O’Connor vacancy.
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A co-worker of Estrada’s, Edward Lazarus, gave insight into these motivations, in an article he wrote for findlaw at the height of the nomination controversy in 2003.
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– Memos “would probably torpedo” Estrada
– “Jam the Senate’s ideological radar”
– Hasn’t carefully thought about Roe? “It isn’t possible”
A credit for the author at the foot of the page offers this : Lazarus “knows Estrada personally, having clerked with him on the Supreme Court during the same time period.” (Estrada clerked for Anthony Kennedy in the late 1980s; Lazarus clerked for Harry Blackmun.)
Lazarus wrote (link at bottom) about the political calculations of (1) the White House, (2) the senators and (3) Estrada during his testimony.
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Lazarus tells us –
Which way Estrada would hold on key issues like abortion and affirmative action is well known to White House people who select Estrada.
It is suspected (but not demonstrable) by the Democrats. The Senate Democrats repeatedly filibustered the nominee because of “what they know (but can’t prove) to be Estrada’s super-conservative views.“
The public doesn’t know what the vetters do.
The opposing senators in 2003 were holding out for Justice Dept. memos written by Estrada when he worked for Bush 41 in 1990 to 1992.
I’m going to quote liberally now from the findlaw column.
Estrada’s former colleague on the Supreme Court staff, Lazarus, expects
“what the memos contain would probably torpedo Estrada.” Even so, he sympathizes with the White House’s desire to keep the memos out of the public light.
Sure, Estrada is a “damn good lawyer. …. Yet the former Supreme Court clerks and Federalist Society types who vet judicial nominees know they’re getting a lot more than that.
…. [He holds] a deeply felt and exquisitely conservative approach to the law.”
“Estrada has been an academic star, and conservative darling, at least since law school. He was a Supreme Court clerk, and he worked in the U.S. Solicitor’s General’s Office.”
If Bush picks Estrada —> he’ll “jam the Senate’s ideological radar”
The Estrada selection (in 2001) [was] “a highly ideological and cynical enterprise.” (Not surprisingly, Lazarus says opposition to him was similarly ideological and cynical. So too was the nominee’s efforts in shielding his views.)
M.E. made “a candidate whose (publicly known) views on the major legal issues of the day are shrouded in mystery.” (Contrast him to say Michael O’Connell or Emilio Garza, whose positions up to now are public knowledge. O’Connell even wrote of his thinking on Roe v Wade in a WSJ op-ed.)
“But the Senate equally has the right to veto nominees based on ideology too. And the President defeats that Senatorial prerogative when, as in the case of Estrada, he attempts to jam the Senate’s ideological radar by offering a blank public record.
“It’s not just that he’s chosen [in 2001] a nominee who hasn’t taken public stands previously. That is perfectly fine. It’s that Presidential advisors [were] doubtless counseling Estrada to avoid taking any such stands in the confirmation process, either.” [The committee hearing for Estrada took place in Sept. 2002.]
“The result is that insiders know all too well what Estrada probably thinks, but the public has little clue – not exactly an attractive situation in a democracy.
“Let’s look at Estrada’s testimony so far. He’s done a great deal of bobbing and weaving to avoid candidly expressing his views about Roe v. Wade. Unfortunately, he hasn’t been able to come up with a plausible reason for all his evasions ….
“A Star Lawyer Who Hasn’t Carefully Thought About Roe? It Isn’t Possible“.
“C’mon. ….. Estrada has lived and breathed conservative legal thinking for the last almost two decades.
…. In addition, Estrada clerked at the Supreme Court at the time when the elder Bush Administration first asked the Court to formally reconsider Roe. And after that, he went to the Solicitor General’s office, where issues of constitutional interpretation are the very stuff of daily life.
“….Roe has emerged as the single most important case for constitutional thinkers in the last 30 years… And Estrada is a constitutional law debater. That’s his stock in trade. To say that he just hasn’t given Roe enough thought is almost laughable.
“It’s not just Estrada’s fault: He’s probably been told this is the only way he can get confirmed. Blame the Administration, too: It’s promoting Estrada as a legal superstar and, at the same time, coaching him (in 2002) to insist he’s legally clueless. Only one of these stances is true, and it’s the former: Estrada’s very smart. He knows exactly what he thinks about Roe.
The Impossible Position In Which Stealth Nominees Leave the Senate
“In my view, thinking ill of Roe is no vice …..” (Lazarus goes on to say he himself has some difficulties with the decision.) “But pretending to agnosticism is.”
“That’s because a true stealth nominee — one who not only lacks a paper trail, but who also is not forthcoming when he testifies — hands the Senate an impossible choice.
“Playing Blind Man’s Bluff with judges and Justices who sit for life is the most dangerous of games for the country.”
The entire findlaw.com article is here [February 20, 2003]
cross-posted also at my new site press-is-sedated.com