Some smears are smearier than others, and the far-left has launched their smeariest so far against one of President Bush’s best judicial nominees.
The president nominated Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit nearly 1 year ago. Mr. Estrada came to America from Honduras as a teenager speaking no English. In no time, he had graduated from Harvard Law School and has experience both in government – as assistant to the solicitor general during the Clinton administration – and now in a partnership in one of America’s premier private law firms.
The far-left, however, cannot afford to let slip that individuals from anywhere can do anything they choose here in America. No, minorities must toe the liberal line or face the consequences. Mr. Estrada’s number is apparently up because the attack has begun.
We now hear that Paul Bender, deputy solicitor general during the Clinton years, claims Mr. Estrada is an “ideologue” who cannot be counted on to be “fair and neutral” or provide a “neutral statement of the law” on legal issues. This smear is particularly outrageous for two reasons.
First, Mr. Bender is the real ideologue – making legal arguments denounced by the U.S. Senate, his own boss Mr. Clinton, the U.S. House of Representatives, and the U.S. Court of Appeals.
In 1993, Mr. Bender engineered the Clinton Department Of Justice’s effort to weaken enforcement of the federal child pornography statute. In a case titled United States vs. Knox, DOJ not only changed its predecessor’s position in the same case, but repeatedly changed its own position in successive appearances before the U.S. Court of Appeals. In fact, DOJ’s position would weaken the child porn statute more than even the convicted child pornographer in this case had sought.
Between Nov. 1993 and June 1994, the Senate voted 100-0 to denounce this move – President Clinton wrote Attorney General Janet Reno to agree with the Senate; the House of Representatives voted 426-3 to reject this Bender-inspired stunt; and the U.S. Court of Appeals rejected his legal arguments.
Mr. Bender is the ideologue. He was chief counsel to the 1970 Commission on Obscenity and Pornography that recommended abolishing all state and federal obscenity laws. In this case, he tried to further that crusade by twisting the statute and replacing a “neutral statement of the law” with what he personally wanted the law to be.
Second, in some high-profile cases, Mr. Estrada was fair and neutral even when the result upset conservatives. In NOW vs. Scheidler, he argued that the federal racketeering statute could be used against pro-life protesters. He was right. The statute contains no limitation or exception to distinguish between social protesters and the Mafia. Maybe it should – but it doesn’t – and a “neutral statement of the law” requires saying so. Mr. Estrada did and the Supreme Court unanimously agreed.
We’ve seen this before. Someone appearing to have credibility makes an accusation about a minority nominee. It’s general enough to make checking the facts difficult and it’s first spread behind the scenes to undermine the nomination. When that fails, the smear is released to spread wherever it will. Yes, you got it. That’s exactly what these very same people – People for the American Way, the Alliance for Justice, and their ilk – did to Clarence Thomas in 1991. And, now, it’s Mr. Estrada’s turn. Maybe they’re afraid he too will end up on the Supreme Court one day.
Both the liberal American Bar Association and the National Hispanic Bar Association investigated Mr. Bender’s smear and rejected it. They both endorsed Mr. Estrada’s nomination and the U.S. Senate should immediately approve it.
Whether senators support the nomination or not, they should all insist on a fair and responsible confirmation process. And they should all denounce the unfair and irresponsible tactics being used against Mr. Estrada.