Sunday, May 31, 2009

Another Modest Suggestion for the Sotomayor Confirmation Hearings

Ever since her nomination has been announced, I have assumed that Sonia Sotomayor will indeed be replacing David Souter on the Supreme Court. I know of no reason that she should not be confirmed; while I disagree with her stated politics, she is certainly qualified to be on the Court.

The important job for Republicans, and conservatives generally, is to use the confirmation hearings as a teaching moment. It's important to get Sotomayor's views out on the public record, to the extent that she will reveal them.

I would do one other thing. The Republicans will be able to call witnesses and there is one person that America needs to hear from on the Sotomayor nomination. That person is Miguel Estrada.

If you don't know who Miguel Estrada is and why he matters, I would like to call to your attention this piece from Byron York in the Washington Examiner. Consider the following:


In 2001, President George W. Bush nominated former Justice Department lawyer Miguel Estrada to a seat on the federal courts of appeals. In that instance, as today, the nominee was was a Hispanic with a compelling story and impressive qualifications. And some of the very people who are today praising Sotomayor spent their time devising extraordinary measures to kill Estrada's chances.

Born in Honduras, Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

Estrada's nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations -- People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others -- that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.

In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. "They also identified Miguel Estrada as especially dangerous," the staffer added, "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

And they did. As York details in his piece, the Democrats succeeded. They threw up a number of procedural maneuvers and eventually filibustered the Estrada nomination, along with many more Bush administration nominees. Eventually Estrada tired of it and withdrew his name from consideration.

I don't know if Miguel Estrada would have made a good Supreme Court justice or not. His story is at least as compelling as Sotomayor's. If academic credentials and job performance matter at all, he surely should have had the opportunity to serve on the Court of Appeals. As the Democrats prepare to take their victory lap for appointing the first wise Latina to the nation's highest court, it would certainly be worth reminding the American people of the role their party played in derailing the aspirations of a wise Latino.

15 comments:

Anonymous said...

Mark,
you do know that Sotomayor was given similar treatment by Senate Republicans in 1998, when her Appeals Court nomination was held up for over a year:

http://bloomberg.com/apps/news?pid=20601087&sid=aHY7ff0lMvBs&refer=home

This is something both sides do all the time. I am always amused when either side gets all apoplectic about the "outrageous" behavior of the other side regarding judicial appointees.

Rich

Mark Heuring said...

So you're okay with the way Estrada was treated, then? And you won't mind if Graham, Sessions et al. do something outrageous to Sotomayor this time?

"Both sides do it" has to stop some time, right? Personally, I'm not interested in standing in the way of Sotomayor, because Obama did win the election and there's no evidence that she should not have the opportunity. Similarly, there was no reason for the treatment Estrada received. Maybe instead of falling on that "both sides do it" dodge, you might want to stand with me on the right of a president to appoint judges and call for this sort of stuff to end. That would be an improvement, no?

Personally, I don't find it amusing at all.

Anonymous said...

Mark,
we are on the same side on this. I do think it was wrong when it happened to both Estrada and Sotomayor, and I should have noted that. But you might have noted it as well. You are a more astute observer of the political world than I am, so you know as well as I do that this stuff goes on on both sides of the aisle. And it should stop.

I believe Presidents should get a great deal of leeway in deciding who to place on the Courts. The only legitimate examples of the Senates Advise and Consent role that I can think of off hand were the rejections of Lani Guenniere and Harriet Myers. And if memory serves me right, they were knocked out by members of their own respective parties because they just weren't qualified. And the Bork rejection was shameful. He would probably still be the smartest man on the court, and was qualified by a country mile.

Rich

Mark Heuring said...

We do agree then. Would that others saw it that way.

Best,
Mark

Right Hook said...

This nominee was picked because she is a woman, a minority, and a liberal - not necessarily in that order. She doesn't appear to be any more than "qualified" at best, given some of her public statements, rulings, and overturn frequency. She seems to have an angry bigoted chip on her shoulder, much like the person who nominated her. If Bork could be rejected for "wrong temperament" this woman should be summarily rejected on the same grounds.

Even if the GOP can't stop her, it's high time for the GOP to stand up to the left and light this nominee up in her confirmation hearings. The left has demanded that GOP presidents send up more "moderate" candidates, so why can't the right demand the same? I'm tired of the double-standard of having to be nice to nominees of the left while Conservative nominees have abuse heaped on them by people of highly flawed character.

Even if this joke of a nominee is not denied a seat on the court there is a great opportunity to highlight what a shallow thinker, highly partisan, and unqualified leader the man who nominated this candidate largely for political payback considerations is.

Mark Heuring said...

If Bork could be rejected for "wrong temperament" this woman should be summarily rejected on the same grounds.

True. Bork shouldn't have been rejected under any grounds.

I'm tired of the double-standard of having to be nice to nominees of the left while Conservative nominees have abuse heaped on them by people of highly flawed character.

I am, too. And it is absolutely fair game to throw the Democrats' tactics back in their faces. Which is why the Estrada matter is worth pursuing.

Even if this joke of a nominee is not denied a seat on the court there is a great opportunity to highlight what a shallow thinker, highly partisan, and unqualified leader the man who nominated this candidate largely for political payback considerations is.

Yep. And it would be a good thing if the Republicans were able to do this effectively. I'm not convinced they will, though.

Anonymous said...

Mark,
it sounds like you want to have it both ways. Is it wrong, and should it stop, or not?

You guys need to come down off your crosses. Both sides have been doing this crap to each others nominees for years. In the 30's, the Republicans had a hooker jump into Wm. O. Douglas's lap and had a photographer snap a picture while Douglas was eating in a restaurant. Couldn't get anything else on the guy. Abe Fortas, although he was later run off the court for shady financial dealings, was the subject of a filibuster in 1968 (before the financial transgressions had come to light) because of his close ties to LBJ and Republican discontent over actions of the Warren Court. So stop acting like this is done in a vacuum. It's not. And the assertions that Sotomayor is not qualified are laughable. 17 years on the Federal Bench, summa cum laude at Princeton, Editor ogf the Law Review at Yale...You can try to paint her as an affirmative action pick, but you sound like just as big an idiot as the folks on the left who did the same to Clarence Thomas. She isn't Harriet Myers, so get over it. And BTW, the average overturn frequency of an Appelate Court Decision that goes to the Supremme court is 77%, and Sotomayor's record is 75%, so RH, please quantify whatever it is you are trying to say.

Rich

Mark Heuring said...

No, I don't want it both ways. Obama should get deference for his pick, but Republicans certainly should highlight their objections to the person he's picked.

I don't think that she should be rejected, but I surely don't advocate a "shut up, he explained" approach, either. I want to know what she thinks about Estrada and I want to know what she thinks about Obama's adventures in Peronism. You want to know about her views on torture. All of those questions are fair game. The Republicans can ask a lot of tough questions without putting a hooker in her lap, or pubic hair on her Coke can, for that matter.

That's not having it both ways. That's having it the right way. And I would expect a future Republican president's nominee to have to answer tough but fair questions as well.

Anonymous said...

Guys,
this may shatter your right-wing talking points view of Sotomayor, but I urge you to read this, and then explain how this dissenting opinion could come out of a woman with "an angry bigoted chip on her shoulder."

http://en.wikipedia.org/wiki/Pappas_v._Giuliani

So we have a Puerto Rican lady judge who you accuse of racism goiing out of her way (dissents are optional) to defend a white male police officer accused of distributing racist pamphlets. Somebody please explain how this can be?

Rich

Mark Heuring said...

So we have a Puerto Rican lady judge who you accuse of racism

I call bullshit, right here and now. Show me where I've accused her of racism, Rich.

Anonymous said...

Mark,
my apologies. You have not accused her of racism. It has been a prominent part of the right-wing talking points, many of which RH just indulged in, and you concurred with, but you did not go there, so I owe you an apology. I had meant to say "is being accused" of racism, but that is no excuse, and I apologize. But the basic point still stands; If you look at Sotomayor's total record as a judge, she does not come out to be the raging liberal that the right is painting her to be. I would even hazard to guess that she may disappoint many on the left in the way the man she is replacing disappointed many on the right.

Regards,
Rich

Mark Heuring said...

You have not accused her of racism. It has been a prominent part of the right-wing talking points, many of which RH just indulged in, and you concurred with, but you did not go there, so I owe you an apology.

Thank you, but I would be remiss if I didn't point out that RH didn't accuse her of racism, either.

If you look at Sotomayor's total record as a judge, she does not come out to be the raging liberal that the right is painting her to be. I would even hazard to guess that she may disappoint many on the left in the way the man she is replacing disappointed many on the right.

Time will tell.

Right Hook said...

Rich -

Looks to me like the left wants it both ways...

If one applies the same standards the left applied to Trent Lott's attempt to be gracious at Strom Thurmond's 100th birthday or Rush's commentary/parody on the LA Times "Magic Negro" piece, then Sotomayor is a racist. I personally do not know if she is a racist or not, but her commentary and associations make her appear to be at least somewhat bigoted and she has some 'splaining to do.

As for "doing this crap" to each other's nominees, yes there always has been and always will be some of that, but the GOP has clearly been more tolerant than your side. For example, the disasterous confirmation of Ruth Bader Ginzburg, who clearly does not understand or care about the original intent of the Constitution or the proper role of the Court, should have been vigorously challenged on her views on judicial activism, her ACLU background, and general legal philosophy. Yet she was was treated with kid gloves and confirmed by almost all of the Republicans.

Obama seems intent on shredding the Constitution and the Right should not allow it without opposition. Unfortunately I think Mark is correct in his assessment that the spineless Republicans in the Senate will probably roll over and let this horrible nomination get confirmed with little or no fight.

Anonymous said...

RH,
you keep stating that Sotomayor is a horrible, bad, terrible, etc, nominee. Upon what, outside of your own politics, do you base that statement on? If it's your opinion that she would be bad for the country because you don't think you will like her politics, that's fine. But if you think she isn't qualified, please tell me why.
Also, what associations of hers make her appear to be at least somewhat bigoted? Please explain.

Rich

Right Hook said...

Rich -

Not to belabor this discussion, but my politics do enter into my assessment of Sotomayor insofar as it as my belief that the function of a Supreme Court justice is to dispassionately interpret the applicability with respect to the original intent of the Constitution to the legal matter at hand, not to create policy, promote "social justice", or right real or perceived past wrongs.

Under this criteria, which I believe is the standard that should be applied, she is clearly not qualified. It doesn't matter how book smart she is or how hard she worked if she cannot demonstrate that she is capable and willing to do the job properly.

Tom Bowden from the Ayn Rand Center sums up the general reasons some of us feel that Sotomayor is a poor choice here.

If her outrageous ruling on the fire fighter case, her downright offensive assertions that her "latina perspective" and associated "rich experiences" are an asset for a judge (wtf does her ethnicity have do do with interpreting the original intent of the Constitution?), her take on the scope of the Second Amendment (the Feds may not be able to outright ban guns, but lower levels of government can), etc., etc. doesn't convince you that she needs to be seriously grilled before confirmation at the very least, you're not going to be convinced. Perhaps it is your politics that are causing you to give this nominee a free pass regardless of her sparse qualifications.

Honestly, would a white male who proudly and in all seriousness asserted that his ethnicity would make him a better judge than a female minority still be in the running for the job (after all, the Constitution was written by white males)? And, if you think not, why shouldn't Sotomayor's assertions be just as disqualifying?