Justice Delayed

The filibuster being waged by Senate Democrats against one of President Bush’s exceptionally well-qualified nominees to the Circuit Courts of Appeal, Miguel Estrada, has now lasted longer than the war in Iraq. In light of this unprecedented action—the filibuster has never in our history been used against a circuit judge nominee—one must ask just what it is about Estrada that would lead some Senators to elevate their opposition to a place of higher priority than even our national defense, economy, or the administration of justice. And one must also ask whether this extraordinary dilatory tactic requires a remedial change in the Senate’s rules.

Miguel Estrada is a Honduran native who barely spoke English when he immigrated to this country as a teenager. His life since then is a vintage Horatio Alger story: He went on to graduate with honors from Harvard Law School, has argued 15 cases before the U.S. Supreme Court, served in the Department of Justice for both the Clinton and Bush I administrations, and received a well-qualified rating from the American Bar Association, its highest. Estrada was first nominated by President Bush on May 9, 2001—nearly 2 years ago. The Senate Judiciary Committee, under the leadership of Senator Patrick Leahy (D-VT) refused even to give him a hearing for more than 16 months. Although, with the change of party control following last Fall’s elections, his nomination was reported out of committee, it was done so on a strictly partisan vote, with not a single Democrat voting in accord with the ABA’s "well-qualified" rating, a rating that Senator Leahy himself once called the "gold standard" in judicial confirmations.

On the floor of the Senate, Estrada’s partisan detractors have fared only slightly less well, managing to block a vote despite Estrada’s command of bipartisan support from a majority of the Senate. This obstruction is made possible by the Senate’s rule permitting unlimited debate absent a super-majority, 60-Senator vote for cloture, and thus far Estrada has been able to manage only 55 votes for cloture, un-chartered territory for one so impeccably well qualified. Why the stand-off? It is alleged that Estrada is "too conservative," perhaps even (gasp!) opposed to abortion. Yet in sworn testimony before the Senate he acknowledged the binding force of Roe v. Wade, and while serving in the Clinton Administration he successfully argued before the Supreme Court that the federal racketeering statute could be used against anti-abortion groups such as Operation Rescue. Moreover, because the ABA has, since the mid-1970s, included within its rating system a consideration of judicial ideology, no one thought by that liberal-leaning organization to be "too conservative" could receive the "well-qualified" rating given to Estrada.

So what is the real source of the opposition to Estrada? Anyone honestly reviewing the record is left with the distasteful conclusion that raw partisan politics is at play. Estrada would be the first Hispanic appointed to the D.C. Circuit Court of Appeals, and once there would become, after a time, a leading contender for a future Supreme Court seat. Can it possibly be that Democrats simply cannot countenance such an accomplishment by a Republican President?

Our nation’s founders worried that giving too great a role in the confirmation process to a partisan political body would lead to unseemly cabal and the loss of accountability. Instead, they gave the Senate a more limited role, merely as a check on Presidential abuse in the nomination process. Moreover, the role was given to the Senate as a whole, not to individual committees or to a minority of the Senate. To be sure, the Constitution also gives to the Senate the power to set its own rules, including the filibuster rule. But there is good reason that the filibuster has never been used against a circuit court judge, and was soundly criticized when on the rare occasion it has been used against a Supreme Court justice: such a rule intrudes upon the constitutionally-mandated separation of powers, allowing a minority of Senators—a cabal—to grab a share of the appointment power not constitutionally assigned to them.

Last month, President Bush proposed a remedy to this abuse of power. In a letter to Senate leaders Frist and Daschle, he asked the Senate to adopt a permanent rule to ensure timely up or down votes on judicial nominations both now and in the future, no matter who is President or which party controls the Senate. The importance attributed to this by the President and his Administration was made manifest by the rare appearance by the Vice President taking his constitutionally-assigned seat as the President of the Senate.

The Senate could honor President Bush’s request by abolishing the filibuster for judicial nominations. Democrats might attempt to filibuster the adoption of such a rule, of course, but even liberal U.S.C. law professor Erwin Chemerinsky, who supports the Estrada filibuster, has noted that use of the filibuster to prevent changes to the rules would be an unconstitutional attempt by a prior Senate, which adopted the rule, to impose a super-majority vote requirement on the current Senate.

Partisan politics aside, the President’s proposal makes good constitutional sense. The growing politicization of the judicial confirmation process, with Senators now routinely demanding statements from nominees about how they view particular cases (and hence would rule on similar issues that might come before them) is threatening the independence of the judiciary, and the Rule of Law itself.

John C. Eastman is a professor of constitutional law at Chapman University School of Law and director of the Claremont Institute Center for Constitutional Jurisprudence in California.

"First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2002 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.