But his opponents didn’t try very hard to attack Estrada. As the Washington Post pointed out in a March 3 editorial, during his hearings “nobody asked Mr. Estrada his view of basic methodological questions that divide the judiciary -- questions that he certainly could have answered and that would have shed light on how he would approach cases.”
The White House also promised that Estrada would answer any questions senators submitted in writing by Feb. 28. Not one senator took advantage of the unusual offer -- and since no questions were asked, none were answered.
Instead, Democrats are insisting that Estrada reveal his opinions by releasing confidential memos he wrote while working as an assistant solicitor general under the Bush 41 and Clinton administrations. All seven living former Solicitor Generals have signed a letter opposing such a release -- saying to do so would harm the legal process.
Gerhardt is also worried that, “with Republicans now in control of the Senate, (Bush’s) judicial nominees have no incentive to testify openly about their views before the Judiciary Committee.”
But in fact, judicial nominees shouldn’t be airing their views before they’re on the bench. According to the American Bar Association rules on judicial conduct, “A candidate for judicial office shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”
Democratic senators, including Schumer and Leahy, have called the ABA’s endorsement the “gold standard” for nominees -- and Estrada was listed as “well qualified”, the association’s top ranking. Somehow the panel at ABA must have overlooked Estrada’s inexperience.
Of course, Gerhardt may be on to something. All of Bush’s selections are older now than they were when he nominated them. Maybe, if the process drags on long enough, they’ll finally be old enough to be acceptable to Gerhardt and Senate Democrats.
But I wouldn’t hold my breath.