The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, recently said: "To contend that [Miguel] Estrada, a young attorney with no judicial experience, is the only Hispanic who could be a nominee to a potential vacancy on the Supreme Court does a disservice to the many outstanding Hispanic judges serving in our federal and state courts."
Actually Bush was just looking for top legal talent, not models for a Benetton ad. And not even a Supreme Court justice. Estrada has been nominated to a federal court of appeals by President Bush. It's rather churlish for Leahy to complain that Estrada has no judicial experience. He can't develop judicial experience until he's on the bench, where the Democrats refuse to put him because he has no judicial experience.
It's interesting that Leahy complained about Estrada's youth. After an utterly undistinguished legal career prosecuting cow-tipping cases in Chittenden County, Vt., Leahy was, his Web site boasts, "also the youngest senator (34) elected from the Green Mountain State"!
To be sure, Estrada, 40, has no cow-tipping prosecutions under his belt. But he has argued 15 cases before the Supreme Court, often considered even better experience than practice before the Chittenden County bench. When Ruth Bader Ginsburg was nominated to the Supreme Court by President Clinton, for example, the media briefly stopped hailing Hillary Clinton as the greatest legal mind in the universe in order to rave about Ginsburg's six arguments before the Supreme Court.
Back when Estrada was first nominated – one year ago – Leahy said: "The nominees who were selected for their qualifications are likely to be confirmed. Those who were selected primarily for their ideology are not likely to be confirmed." But in the succeeding year, Leahy has refused to grant hearings to a slew of lawyers with astonishing legal qualifications.
Almost 40,000 students graduate from law school every year. Each year, only 33 will clerk for the Supreme Court. Indeed, only three sitting members of the Supreme Court – also a good credential – did so. Estrada is among this elite group, as are at least three other of the nine lawyers Bush chose for appellate courts one year ago.
Estrada clerked for Justice Kennedy and has argued 15 cases before the Supreme Court. John Roberts clerked for Justice Rehnquist and has argued more than 30 cases before the Supreme Court. Jeff Sutton clerked for Justice Scalia and has had 15 arguments before the Supreme Court. Michael McConnell clerked for Justice Brennan and has argued 11 cases before the Supreme Court. None of them have even been given hearings by Leahy.
It turns out what the Democrats mean by "selected primarily for their ideology" means the nominee went to top law schools, had prestigious federal clerkships, went on to distinguished legal careers – but are believed to be Republicans. Evidence of "extreme views" consists of association with the Federalist Society, a group of intellectuals that holds racy legal debates on the privileges and immunities clause, and issues publications with edgy titles like "Reciprocal Compensation Decision Resolves Little."
As legal scholar Sen. Chris Dodd, D-Conn., explained: "We don't want this to be a judiciary jammed and packed with people who've come out of the Federalist Society with extreme views."
Consequently, Bush had already purged his list of judicial nominees likely to incite a Democratic witch hunt. He withdrew the names of two Harvard Law School graduates – one a Supreme Court clerk, one a U.S. congressman – after Democrats discovered with alarm that the two had suspicious associations with the Federalist Society. To get a fair shake from the Democrats, the Federalist Society should change its name to "Communist Party U.S.A."
In addition to the first nine he chose, Bush even included two Clinton nominees – an unprecedented concession. The Senate Democrats responded to Bush's olive branch by quickly confirming the two Democrats and refusing to confirm all but one of Bush's nine nominees.
When that first batch of judicial nominees was announced one year ago, Democrats said they would refuse to hold hearings until the candidates had been vetted by the Democratic Party's legal adjunct, the American Bar Association. OK: All four of these nominees have been reviewed by the ABA. Three received unanimous "well qualified" ratings (Estrada, McConnell, Roberts), and one received a mixed "well qualified/qualified rating (Sutton).
Still, no hearings.
When Bush recently complained about the massive resistance to his judicial nominees, Leahy angrily denied the accusation, saying: Republicans did it first! In point of fact, Republicans held up nominations of jurists like Frederica A. Massiah-Jackson of Philadelphia, who shouted obscenities at prosecutors from the bench. ("Shut your f***ing mouth," she explained.) Which Clinton nominee with a half-dozen arguments before the Supreme Court did Republicans refuse to confirm?
But moreover, even if it weren't a lunatic comparison, what kind of argument is that? The Republicans did it too? This must be the sort of finely honed legal argument one develops prosecuting cow-tipping cases. Perhaps the Federalist Society could finally gain the admiration of Senate Democrats if it too began showcasing the legal logic of bratty 4-year-olds.