A cartoon and two articles on the importance of the Estrada nomination to the presidency.
Coup Against the Constitution
By George F. Will
The president, preoccupied with regime change elsewhere, will occupy a substantially diminished presidency unless he defeats the current attempt to alter the constitutional regime here. If at least 41 Senate Democrats succeed in blocking a vote on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the Constitution effectively will be amended.
If Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.
Senate Democrats cite Estrada's lack of judicial experience. But 15 of the 18 nominees to the D.C. court since President Carter have lacked such experience, as did 26 Clinton circuit judge nominees who were confirmed. And 43 of the 108 Supreme Court justices (most recently Byron White, Thurgood Marshall and Lewis Powell), including eight of the 18 chief justices (most recently Earl Warren), had no prior judicial experience.
Sen. Charles Schumer opposes Estrada because his mind is, Schumer says, a mystery. And because the Justice Department refuses to release papers Estrada wrote during his five years (four of them in the Clinton administration) in the solicitor general's office. The department, emphatically supported by all seven living former solicitors general (four of them Democrats), says that violating the confidentiality of department deliberations would have a deleterious effect on those deliberations. Anyway, the papers Schumer seeks contain not Estrada's personal views but legal arguments supporting the litigation positions of the U.S. government.
Estrada, whose nomination has been pending for almost two years and who has met privately with any senator who has asked to meet with him, answered more than 100 questions from the Judiciary Committee, an unusually large number. Only two of 10 Judiciary Committee Democrats exercised their right to submit written questions to Estrada for written answers. Schumer did not.
Schumer says, "No judicial nominee that I'm aware of, for such a high court, has ever had so little of a record." Actually, he is aware of at least two nominees to a yet higher court -- Gov. Warren and Sen. Hugo Black -- who had no record comparable to Estrada's 15 briefs and oral arguments (10 of them victorious) in cases he argued before the Supreme Court.
Schumer says Estrada would not cite "three Supreme Court cases in the past you disagree with." Actually, he was asked to cite three "from the last 40 years," a transparent attempt to force him to discuss Roe v. Wade. But because abortion-related cases still come before courts, Estrada could not discuss Roe without violating the American Bar Association's Code of Judicial Conduct, which says prospective judges "shall not . . . make statements that commit or appear to commit the nominee with respect to cases, controversies or issues that are likely to come before the courts." Which is why Justice Ruth Bader Ginsburg, declining to answer certain questions at her confirmation hearing, said, "It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide" (emphasis added).
When Boyden Gray was White House counsel for the first President Bush, Sens. Edward Kennedy and Joseph Biden -- both now former chairmen of the Judiciary Committee, and both still on it -- warned him that any nominee would be rejected if the White House asked the nominee questions about specific cases. And a Judiciary Committee questionnaire, which every nominee must complete, sternly asks: "Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific case, legal issue, or question in a manner that could reasonably be interpreted as asking or seeking a commitment as to how you would rule on such a case, issue or question?" (emphasis added).
Alexander Hamilton wrote in Federalist Paper 76 that the Senate's role is to refuse nominations only for "special and strong reasons" having to do with "unfit characters." The American Bar Association unanimously gave Estrada its highest rating, and Estrada's supervisors in the solicitor general's office gave him the highest possible rating in every category, in every rating period.
Given the cynicism and intellectual poverty of the opposition to Estrada, if the Republican Senate leadership cannot bring his nomination to a vote, Republican "control" of the Senate will be risible. And if the president does not wage a fierce, protracted and very public fight for his nominee, he will display insufficient seriousness about the oath he swore to defend the Constitution.
© 2003 The Washington Post Company
If Republicans stick to their guns on the Miguel Estrada nomination, they will win - not just his nomination, but a domestic test of will every bit as significant as the ones the Administration is currently playing on the international front.
In November of 1995, Newt Gingrich made a rare miscalculation, and underestimated the will of President Clinton in the famous government shutdown case. That miscalculation cost the Republicans the momentum from the 1994 elections, saved Clinton's presidency and cost Newt the speakership. Gingrich thought Congress could force Clinton to back down. "We've passed a bill to keep the government open," he said in my presence. "Sooner or later he'll have to sign it or take the blame."
No he didn't, and the lesson to be learned is that if a president has sufficient backbone, he can always win a game of chicken with Congress. In the long run, this may or may not be good for the country, but it's true nonetheless.
In the Estrada case, a presidential win would be very good for the country, at three different levels. First, it would place on the bench of the U.S. Court of Appeals for the District of Columbia and exceptionally deserving man, the substantive case against whom is, as those who are making it are well aware, a joke.
Second, it would demonstrate to the Democrats that they cannot use scorched-earth tactics to prevent the United States Senate from conducting its business in its traditional manner.
Third, it would facilitate the confirmation of several other judicial nominees waiting in the wings, thereby setting the table for the enrobement of a responsible judiciary that could have a positive impact on the nation for decades to come.
The key to any successful democracy is the willingness of losers to accept defeat. America taught the world how to do this, and now it happens routinely in the most remarkable places around the globe, from Russia to Belize. But in the 21st Century, the American Democratic Party has been backsliding.
First, they disputed the outcome of the 2000 Presidential election; now they are attempting to overturn the results of the 2002 Congressional elections by holding the Senate hostage from their minority position. What a contrast they present to the Republicans who, after the Jeffords switch calmly and with great dignity handed over the leadership to their opponents and pursued their objectives in the electoral arena. Yet this year, Democrats refused to allow the Senate even to organize rather than hand over committee chairmanships to the G.O.P., and now have sunk to a new level of odium - something never before even attempted in the history of the country - by filibustering the nomination of an appellate court judge.
They are doing it because they are partisan to a point beyond anything imaginable in those halcyon days of our youth, when leaders cared first about the welfare of the country, and when they found themselves in the minority, counted on the superiority of their ideas and campaign acumen to eventually reverse their fortunes.
In those days, the Democrats had left, center and right factions, with the latter two operating to brake the runaway train tendency of the left. Now the right and center together are reduced to a handful of noble anachronisms, and the embittered left, mostly men and women who learned their politics in the violence and outrage of the 1960's, has turned to guerilla tactics.
For them, the stakes seem enormous; their principal fear is that a Republican judiciary will overturn Roe v. Wade. They may or may not be right, but what's important is that they believe it could happen, and they know public support for the various steps from here to there is trending against them, as has been shown by recent Gallup polls showing massive majorities for measures such as a ban on partial birth abortions, parental consent, waiting periods and other restrictions left-wing Democrats find abhorrent. With public support hardening against them, legislative action on these issues is certain to follow, and then it will be up to judges to decide if the new laws are constitutional.
That is why they are willing to go to such extremes.
But time is running out
on their game. If war comes, they cannot possibly hold the Senate hostage simply
to appease their displeasure on such an innocuous figure as Estrada, and even
before that, if the President and Senator Frist will but take a lesson from
Clinton and hang tough, the filibuster will soon enough crumble under the weight
of public disgust.
Other articles by RealClearPolitics contributor Jay Bryant may be found on his web site The Optimate. A former television producer, Republican media consultant and educator, Bryant has served in top staff positions in both the Senate and House, as well as state government.
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