Washington 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 anticonstitutional 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 nominations to the D.C. court since President Carter 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 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 Assn.'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 ABA 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.