Approval for Estrada is long overdue
R. Charles Henn Jr. and Frank B. Strickland
For the Atlanta Journal-Constitution
Tuesday, March 11, 2003
Miguel Estrada came to this country at age 17 as an immigrant from Honduras speaking little, if any, English.
He has since risen to the top of the legal profession. Having graduated magna cum laude from Harvard Law School, he clerked for Supreme Court Justice Anthony Kennedy, and served as assistant solicitor general of the United States during both the Bush I and Clinton administrations. He has argued 15 cases before the U.S. Supreme Court, including one in which he represented a death row inmate pro bono (at no charge).
In a March 6 opinion column, "Don't let mum be word for Estrada," writers Tisha R. Tallman and Charles T. Lester argue that Estrada would support "a huge rollback of vital rights." Conveniently, the article provides no evidence whatsoever for this claim.
The American Bar Association unanimously rated Estrada "well qualified," its highest possible ranking. He has received the support of the League of United Latin American Citizens (the nation's oldest and largest Hispanic civil rights organization), the U.S. Hispanic Chamber of Commerce and the Hispanic National Bar Association, among others.
The only stated basis for the conclusion by Tallman and Lester that Estrada's appointment would threaten civil rights is his affiliation with the Federalist Society. His involvement in the Federalist Society, however, is yet more evidence that mainstream America would find him unobjectionable.
The society stands for two things --- civilized debate and dialogue about the state of the law, and the idea that respecting limitations on government power set forth by our Constitution (including federalism) is the very best way to achieve human dignity.
Tallman and Lester next argue that Estrada has been "close-mouthed" about his legal opinions. Quite the contrary, Estrada testified at length before the Senate Judiciary Committee, answering hundreds of questions from Democratic and Republican senators. He testified that he would "follow binding case law in every case," even when he may disagree with that precedent.
He properly refused to say how he would rule on specific cases that might come before him, which is both traditional and appropriate for a judicial nominee. As Lloyd Cutler, counsel to Presidents Carter and Clinton, stated, "Candidates should decline to reply when efforts are made to find out how they would decide a particular case."
In an effort to give Democrat senators an opportunity to learn more about Estrada, White House Counsel Alberto Gonzalez sent a letter on Feb. 27 to all U.S. senators urging them to avail themselves of three additional mechanisms to obtain information: meeting with Estrada, posing written questions to him or posing inquiries to his former superiors within the Justice Department. Since that time, apparently, no senator has submitted questions to Estrada and no senator has submitted inquiries to his former superiors. Only one senator, Robert Byrd (D-W.Va.), scheduled a meeting with Estrada.
It appears that Democrats in the Senate are on the one hand complaining that they cannot see what is going on around them and on the other hand are burying their heads in the sand. Tallman and Lester complain that Estrada refused to release memos he prepared while he worked as assistant solicitor general. The authors fail to mention that these memoranda are confidential and protected by attorney-client privilege. Estrada's nomination has been pending since May 9, 2001. Despite months of background checks and investigations, weeks of hearings before the Judiciary Committee and unlimited opportunities for senators to gain information through other means, the Senate has not yet held a single vote on his nomination.
Democrats have now taken the unprecedented step of blocking a judicial nomination by filibuster, refusing to allow a simple yes-or-no confirmation vote.
Estrada's nomination has been pending for too long. The time has come for a vote to confirm Estrada for the Court of Appeals for the D.C. Circuit.
R. Charles Henn Jr. and Frank B. Strickland are Atlanta attorneys.