In an encouraging sign of life, Senate Republicans are demanding hearings for two of the many judicial nominees caught in the Democrats’ obstruction machine.
The U.S. Court of Appeals for the D.C. Circuit is one-third empty. With President Clinton naming judges, Democrats demanded that all 12 seats be filled. Senator Joe Biden, for example, said in March 1997 that “the D.C. Circuit needs 12 judges to handle its complex caseload.” Senator Patrick Leahy, now Judiciary Committee chairman, said that vacancies impact the D.C. Circuit more than other courts because of its special jurisdiction.
Evidence that this court needs no less than 11 full-time judges has not changed and conservatives should not now abandon that position because President Bush is nominating judges. But though the court is now nearly 30 percent below even that level, Democrats who once demanded it be full are blocking superbly qualified nominees to fill two of its vacancies. One reason might be that the remaining full-time judges are evenly split between Democrats and Republicans.
President Bush nominated John Roberts and Miguel Estrada more than six months ago. Neither has even received a hearing. It’s not as if the Senate has been busy processing other judicial nominees. Only 27 of President Bush’s 64 nominees have even received a hearing and only 18 have been confirmed all year. While the Senate confirms an average of 72 percent of a new president’s first-year nominees in the first year, the Senate this year has confirmed just 28 percent.
No, Democrats are blocking Roberts and Estrada because they don’t want them on the D.C. Circuit at all. For Mr. Roberts, it’s not the first time. The first President Bush nominated him to that same court but Democrats, who also controlled the Senate back then, refused to grant him a hearing.
Mr. Roberts is a partner and head of appellate practice at the prestigious Hogan & Hartson firm here in Washington. He clerked for then-Associate Justice William Rehnquist on the U.S. Supreme Court, was associate counsel to President Ronald Reagan and principal deputy solicitor general in the first Bush administration. He has argued 33 cases before the Supreme Court.
Mr. Estrada is a partner at the prestigious Gibson, Dunn & Crutcher firm here in Washington. He clerked for Associate Justice Anthony Kennedy, was an assistant U.S. attorney in the first Bush administration and assistant to the solicitor general in the Clinton administration.
Even the liberal American Bar Association had to conclude that each of these men is well qualified for service on the D.C. Circuit.
Criticism of Roberts and Estrada has an all-too-common theme, based on the results they achieved or the positions they took as lawyers. This approach is wrong for several reasons. First, it’s simply not accurate – even the liberal ABA says that positions a lawyer takes on behalf of a client cannot fairly be attributed to him. Second, and more important, it’s the wrong standard altogether. While lawyers fashion strategies for achieving a particular result, judges must apply the law without regard to the result. The question for judges is whether they will follow or make the law, not what results they will reach.
Liberals attack Mr. Roberts for supposedly representing too many business clients. Even if this were a useful way of evaluating lawyers or judicial nominees (and it’s not), Mr. Roberts also represented the 19 states suing the Microsoft corporation for allegedly violating the antitrust laws.
Conservatives attack Mr. Estrada for a position they don’t like. In a 1995 case, pro-life groups argued to the Supreme Court that the federal racketeering statute should be applied to organized crime, who seek economic gain, but not social protesters, who pursue a cause. The statute, however, contains no such exception for social protesters and the conclusion for a judge who follows the law is obvious. That’s what the Supreme Court said.
Mr. Estrada argued in the United States’ brief that the statute was unambiguous and the Court had no authority to re-write it. Though his position, and the Court’s ultimate decision, yielded liberal or pro-abortion results, it was nonetheless the correct decision.
While pro-lifers attack the Supreme Court’s decision in Roe vs. Wade for making up a provision of the Constitution, here they demanded that the Court make up a provision of the statute. The Court can either make the law or they can’t – conservatives who have argued that judges must follow the law are wrong to attack Mr. Estrada for his correct position in this case.
All 49 Senate Republicans signed a letter calling for hearings on these nominees. While describing their credentials and making much of Mr. Estrada’s Hispanic heritage (he emigrated to the U.S. from Honduras as a teenager), they never addressed the real issue. A nominee’s law school grades pale next to the kind of judge he’s going to be. When a judge steals our freedom by re-writing our laws, we don’t feel better because he’s black or Hispanic. And since Democrats have already cornered the bean-counting game, Republicans should press the real issue and not waste time pushing the diversity button.
These are just two of the many outstanding nominees President Bush has sent to the Senate. Democrats who once whined about vacancies, crying that “judges delayed is justice denied,” should do their constitutional duty and confirm them.
