Outside the Mainstream
September 1, 2002
This week the Senate Judiciary Committee will hold its first hearing on Miguel Estrada for a position of judge for the United States Court of Appeals for the D.C. Circuit. Unfortunately, the hearings for this highly qualified lawyer who would and indeed should be the first Hispanic appointed to this prestigious court are likely to be little more than a fishing expedition, during which liberal Senators and advocacy groups will attempt to find the least scintilla of evidence to suggest that Mr. Estrada is "outside the mainstream."
The standard attacks used with cookie-cutter consistency by liberal advocacy groups to smear judicial nominees have so far failed with Estrada. First, they continue to accuse him of lacking experience. This charge is easily dismissed as laughable: Mr. Estrada has argued fifteen cases before the Supreme Court, received the American Bar Association’s highest approval with a unanimous vote of "well-qualified," and has been described by Clinton Solicitor General Seth Waxman as an "exceptionally well-qualified appellate advocate."
Opponents then raise the specter that Mr. Estrada is "too ideological" for the bench, without ever explaining what being "too ideological" means. Does "too ideological" simply mean that opponents believe Mr. Estrada to have a conservative political or judicial philosophy? If so, is the allegation then that someone with a conservative philosophy (or any other philosophy for that matter) lacks the capacity to be impartial, or to interpret laws with which he or she may disagree? Leaving aside the underlying merits or suppositions of such a claim, this accusation clearly falls flat in the case of Mr. Estrada, whose record simply doesn’t support this scurrilous charge. Far from touting the party line, Mr. Estrada has litigated alongside the National Organization for Women, arguing that abortion clinics may seek civil penalties from abortion protesters. Furthermore, despite opponents’ rumblings about what they say they "believe" about his views on criminal procedure, Mr. Estrada has provided free legal assistance to a death row inmate. Indeed, it should be no small demonstration of his open mindedness that Mr. Estrada chose to work in President Clinton’s Justice Department, and that he did so in a position that would make him a key advocate of the administration’s legal policy. That he did so while earning consistently high marks for his work performance demonstrates his capacity to work with individuals from both sides of the aisle.
What then is the basis for the charge that Mr. Estrada is outside the mainstream? Opponents point almost exclusively to the statements of one man: Paul Bender. Mr. Bender, who served as "political" Deputy and as a supervisor to Mr. Estrada in the Solicitor General’s office during the Clinton administration, has repeatedly stated that Mr. Estrada is "too much of an ideologue to be an appellate judge." Mr. Bender is alone among his colleagues at Justice in making this accusation. In fact, Seth Waxman, the Solicitor General for whom both Mr. Bender and Mr. Estrada worked, sent a letter to the Judiciary Committee expressly disagreeing with Mr. Bender’s assessment, and lauding Mr. Estrada’s professionalism and judgment. Because Mr. Bender provides no support for this statement, all we have to go on is his word. It is therefore worth getting to know Mr. Bender.
Because Mr. Bender was the "political" deputy, he was permitted to assume his high post without going through the pleasure that is Senate confirmation. This circumvention of Senate review was obviously no accident. From the earliest days of his tenure, Bender was referred to in the press as "not a popular pick," and "an unabashed liberal." His presence in the Solicitor General’s office led to well-publicized friction with the career staff, who cited as their primary grievance not Mr. Bender’s politics, but rather his lack of collegiality and his tendency to "impugn people’s work and their motives and their integrity."
In contrast to his unfounded allegation that Mr. Estrada lacks the proper temperament to be a judge, Mr. Bender has actually demonstrated that he lacks the proper temperament to be even a neutral arbitrator. In 1999, the American Arbitration Association removed him from the position of arbitrator in an action between the Arizona Gaming Control Board and Indian tribes, citing "serious concerns regarding Mr. Bender’s attitude and approach," which included "inappropriate communications" with one of the parties to the case. That Mr. Bender has failed at his one effort as impartial decisionmaker casts grave doubts about his ability to stand in judgment of Mr. Estrada’s impartiality.
Furthermore, for someone so quick to impugn the ideological motives of others, Mr. Bender’s resume reveals a career remarkably influenced if not driven by ideology. He served as Chief Counsel for the Presidential Commission on Obscenity and Pornography, which recommended the abolition of pornography laws, a position so outside the mainstream that it was rejected 95-5 by the Senate. His own views seem to go even farther, leading him to suggest that sexually-explicit material should not be removed from public display "just because it’s disgusting." It should come as no surprise then that while he was at the Solicitor General’s office, that office reversed its position in a child pornography case, arguing that depictions of children must be more explicit than the prevailing standard to constitute child pornography. This "mainstream" position was rejected by the Senate by a vote of 100-0.
His views on other issues appear to be uniformly liberal in bent. He spoke out against the Clinton impeachment, supported the decision striking down Arizona’s English-only law, sits on the board of a group dedicated to abolish the death penalty, and has joined numerous letters to Congress on subjects from opposing the balanced budget amendment to opposing the confirmation of Seventh Circuit Judge Manion. On the issue of abortion, he found nothing legally wrong with Arizona sending one of its wards across state lines when the minor, who was 23 weeks pregnant, was too far along in her pregnancy to procure an abortion in Arizona. At the Department of Justice, Mr. Bender seemed to be the favored lawyer to argue the more controversial positions. Whether the issue was challenging Virginia Military Institute’s single-sex status, or arguing in favor of racially gerrymandered voting districts, or even defending continued judicial supervision of Judge Clark’s infamous $2 billion desegregation plan (which included a zoo, a wildlife sanctuary, and an Olympic-sized pool with underwater viewing room), Mr. Bender was the lawyer to whom President Clinton turned.
Those who oppose Mr. Estrada for allegedly being "ideological" base their opposition on little more than the personal opinion of a single man who himself, like many of the advocacy groups telling Senators how to advise and consent, is well outside the mainstream. That the Senate has been willing to give any credence to these unsupported allegations bodes ill. The Democrats have long purported to support opportunity for women and minorities, but as the rejection of Justice Owen and the baseless opposition to Mr. Estrada demonstrates, women and minority candidates who even appear to do other than slavishly toe the liberal line need not apply.
Robert Alt is an Adjunct Fellow of the John M. Ashbrook Center for Public Affairs at Ashland University, Ohio.