Judges and Judiciary
Apr. 23, 2003
Filibuster Chips Away at Rule of Law
Forum Column - By John C. Eastman - The filibuster being waged by Senate Democrats against one of President George W. Bush's exceptionally well-qualified nominees to the Washington, D.C., Circuit Courts of Appeal, Miguel Estrada, has lasted longer than the war in Iraq.
John C. Eastman
Center for Constitutional Jurisprudence c/o Chapman Law School
1 University Dr
Orange , CA 92866
Phone: (714) 628-2587
Email: jeastman@chapman.edu
Univ of Chicago Law School
Dr. John C. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University's Fowler School of Law, and founding director of the Claremont Institute's Center for Constitutional Jurisprudence.
By John C. Eastman
The filibuster being waged by Senate Democrats against one of President George W. Bush's exceptionally well-qualified nominees to the Washington, D.C., Circuit Courts of Appeal, Miguel Estrada, has lasted longer than the war in Iraq.
In light of this unprecedented action - the filibuster never in our history has 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 our national defense, economy or the administration of justice. And one also must 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 teen-ager. His life since then is a vintage Horatio Alger story: He graduated with honors from Harvard Law School, has argued 15 cases before the U.S. Supreme Court, served in the Department of Justice for both Bill Clinton and George Bush administrations and received a well-qualified (and highest) rating from the American Bar Association.
Estrada first was nominated by Bush May 9, 2001 - nearly two years ago. The Senate Judiciary Committee, under the leadership of Sen. Patrick Leahy, D-Vt., refused to give him a hearing for 16 months.
Although his nomination was reported out of committee due to the change of party control following last fall's elections, the committee vote followed strict party lines. Not a single Democrat voted in accord with the American Bar Association's "well-qualified" rating, a rating that Leahy himself once called the "gold standard" in judicial confirmations.
On the floor of the Senate, Estrada's detractors have fared only slightly less well, managing to block a vote despite Estrada's command of bipartisan support from a bipartisan majority of the Senate. This obstruction is made possible by the Senate rule permitting unlimited debate absent a super-majority, 60-Senator vote for cloture.
Thus far Estrada has been able to draw only 55 votes for cloture, uncharted territory for one so impeccably well-qualified.
Why the standoff? Some say 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, a too-conservative nominee could not receive the "well-qualified" rating given to Estrada from that liberal-leaning organization.
So what is the real source of the opposition to Estrada? Anyone honestly reviewing the record is left with the distasteful conclusion that raw party politics is at play. Estrada would be the first Hispanic appointed to the Washington, 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 never has been used against a circuit court judge and was criticized soundly on the rare occasion it was used against a Supreme Court justice. Such a rule intrudes on 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, Bush proposed a remedy to this abuse of power. In a letter to Senate leaders Bill Frist, R-Tenn., and Tom Daschle, D-S.D., 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 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 University of Southern California law professor Erwin Chemerinsky - who supports the Estrada filibuster - has noted that using the filibuster to prevent changes to the rules would be an unconstitutional attempt by a Senate adopting that 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 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, a former law clerk to Supreme Court Justice Clarence Thomas, teaches constitutional law at Chapman University School of Law and is the director of the Claremont Institute Center for Constitutional Jurisprudence.
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