(The Return of) Ignatz, by Sam Heldman

Wednesday, February 12, 2003

beware the untruths about the Estrada nomination
There are three major untruths being passed around about the Estrada nomination. (More than that, really, but these are the three biggies I believe). Some who pass these untruths around are surely doing so with knowledge of their falsehood; others maybe don't know, but should.

(1) The filibuster of Estrada is "unprecedented". Wrong. See President Johnson's nomination of Fortas, discussed here on the Senate's own website. (Is this perhaps the first filibuster of an appellate court nominee, as distinct from a Supreme Court nominee? Maybe so -- but that distinction is immaterial to the implication, which drives the Estrada-supporters' rhetoric here, that a filibuster is inherently undemocratic as applied to a judicial confirmation vote.)

(2) The opposition to Estrada is an instance of national-origin discrimination. You know, those horrible Democrats hate Hispanics. Wrong, despite the charges by such folks as noted civil rights leaders Haley Barbour and Boyden Gray. The evidence? He is Hispanic, and many Democrats oppose him. That's it; and that kind of evidence doesn't prove a causal connection -- a discriminatory motive -- as any honest lawyer could tell you. The opposition to Estrada is quite obviously political/ideological (and, for some opponents, based on his lack of judicial or academic experience), not based on national origin; there is literally no evidence to the contrary. And don't forget about Clinton nominee Richard Paez, who was subjected to several years of delay before finally being confirmed over the objection of many Republicans, having been held up for all those years by Senator Hatch and his colleagues in committee. Was he the victim of discrimination too? Where were Barbour and Gray (and the other Republican operatives making this "discrimination" charge) on that one?

(3) It's inappropriate for Senate Democrats to ask tough questions about what Estrada believes about various substantive issues of law. Wrong. See Justice Scalia's opinion for the Supreme Court in Republican Party v. White, pointing out (correctly, in my view) that judges have the capacity to make law in serious ways, and that a prospective judge's views on substantive issues are an important part of the person's qualification for judicial office, and that citizens have a wholly legitimate interest in knowing these things when deciding whether to accept the person as a judge.

posted by sam 10:16 AM 0 comments


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