(The Return of) Ignatz, by Sam Heldman

Monday, September 23, 2002

Judicial nominations again

Having finally finished my draft of a very boring brief, and with my kid off at daycare, I can write at some length about judicial nominations again, this time about Miguel Estrada's nomination to the DC Circuit. Many people are writing about it, including many who are more erudite than I am. But here, for the reading pleasure of my AOL-rightwing-flamers and others, is a practicing liberal lawyer's take.

I ended up supporting Prof. McConnell's nomination to the Tenth Circuit for two reasons: mostly because he is reputed by those who know him to be an open-minded and good-hearted and intellectually honest person (even though hard-hard-right on at least some issues), and also, as a subsidiary reason, because we were talking about a nomination to the Tenth Circuit rather than to a court that regularly sets the national agenda on important legal issues. I would oppose Prof. McConnell if he were nominated to the Supreme Court, I think, because I think that being hard-hard-right is enough reason in and of itself to warrant political opposition to a Supreme Court nominee. But for the Tenth Circuit, intellectual honesty and open-mindedness is good enough in the current political climate. Yes, I know that I bow to unfortunate political reality somewhat more readily than some of my friends do, but there you have it.

But I oppose Mr. Estrada's nomination for the same two reasons: because of what I have been able to learn about his thinking, and because of the Court to which he has been nominated. I'll address those in backwards order.

(1) The U.S. Court of Appeals for the D.C. Circuit is sometimes called the second-highest court in the nation. This is technically wrong, because all of the U.S. Courts of Appeals are at the same level, but it has some metaphorical truth to it. The D.C. Circuit is particularly important to our nation's legal culture because of the types of cases it hears. To take one example especially dear to my heart: under 29 U.S.C. 160(f), any company found guilty by the National Labor Relations Board of violating the National Labor Relations Act can appeal to the D.C. Circuit, rather than to the Circuit where the company does business, if the company thinks that the judges of the D.C. Circuit would be more favorable. This is called forum-shopping – congressionally-sanctioned, and perfectly lawful. And it's an example of what could happen to the law all over the country if the D.C. Circuit tilts farther to the Right than it is now. One bad labor-law decision from that Circuit could wipe out any whole category of labor rights in every workplace in the nation; even if the NLRB tried to continue enforcing its view of the law despite one adverse ruling from the D.C. Circuit, any company could secure an immediate reversal in the D.C. Circuit. No other Circuit has this sort of nationwide power in labor law. Similarly, the DC Circuit is the Circuit of choice – both by statute, and by litigants' forum-shopping choice – for many companies challenging many sorts of administrative-agency action. Environmental law, telecommunications law, energy law, workplace law, freedom-of-information law, every other sort of administrative law that affects lives, is disproportionately heard by the D.C. Circuit as contrasted to other Circuits.

Moreover, the D.C. Circuit hears a disproportionate number of other important cases, raising issues vital to our democracy, by virtue of its geographic jurisdiction; in other words, lots of the big stuff relevant to our relationship with our government happens here, and so many of the important lawsuits about the extent of governmental power are filed in the District Court here, and the D.C. Circuit is the appellate court for those cases.

So, in short, a bad judge on the D.C. Circuit is quite a bad thing, with consequences on a nationwide scale. I don't think that any lawyer who stays aware of federal court decision-making would disagree with a word that I've said in this section (1), about the power and importance of the D.C. Circuit.

(2) So why is Mr. Estrada a bad choice for the D.C. Circuit? The answer is that there is good reason to believe that not only is he very Right-wing, but also that he is closed-minded, intensely partisan, and intellectually dishonest. The best explanation I've seen of the evidence for this, is in this article from the Nation. It is quite chilling, particularly this page, which goes well beyond usual-suspects sound-bytes and offers facts upon which you can make up your own mind.

Most important to me was the quotes from his former supervisor in the Solicitor General's office. That's the section of the U.S. DOJ that writes and argues cases in the U.S. Supreme Court for the government. There is a long and honorable tradition in that Office of trying to be non-political, to be almost judicial in seeking a balanced and honest approach to the law rather than trying to advance a political agenda. They don't always stick to this tradition – after all, the S.G.'s position on Roe v. Wade, for instance, does change with Administrations – but that's their aspiration and their tradition. So, how somebody behaves in the S.G.'s office is a pretty good indicator of how he or she would behave as a Judge. How did Estrada behave in that office? Here's what his former boss says: that he was so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way".

That quote alone is enough to prove, to anybody who wants a judge who can be trusted to judge honestly rather than in an intellectually-dishonest ideologically-driven way, that Estrada is not the person for the job. The only way to disprove this – to rehabilitate Estrada's candidacy for a lifetime position of great power – is to show that the person who said it is himself a lying partisan who is simply engaging in partisan combat, or is a nut.

So here's what I can tell you that goes beyond what The Nation says. The other day – in an effort to determine for myself whether Paul Bender, the former supervisor who said that about Estrada, is a partisan hothead who would be willing to say false things about Estrada in order to derail him – I asked a friend if she knew anything of him. (I had thought, for reasons of geography and personal history, that she might.) Her reaction was immediate and strong: that Bender is the farthest thing from a partisan, that he is mild and scholarly and warm and honest and the kind of person who would not say such a thing unless it was perfectly true. And I've looked around, and have not found any indication anywhere to dispute her assessment of him.

So, unless you WANT the nation's most important appellate court to have judges who fudge the law to reach right-wing results, this nomination deserves your full attention and a letter to your Senator. If I had a Senator I'd write one, but all I have is this silly blog.

posted by sam 1:52 PM 0 comments


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