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White House to Schumer: You’re Wrong. The White House defends Miguel Estrada — again
NRO ^ | 2/25/2003 | Alberto Gonzales, The White House

Posted on 02/25/2003 4:39:11 PM PST by Utah Girl

With the Democratic filibuster of the appeals-court nomination of Miguel Estrada continuing today in the Senate, White House counsel Alberto Gonzales has responded to comments made over the weekend by Sen. Charles Schumer, a leader of the opposition to Estrada. In an appearance on ABC's This Week With George Stephanopoulos, Schumer claimed, among other things, that Estrada "answered no questions" at his confirmation hearing; that "no judicial nominee that I'm aware of for such a high court has ever had so little of a record"; that "there is no legal precedent" against turning over Justice Department documents Estrada wrote while working in the Solicitor General's office; and that Democrats "are not filibustering" the nomination. In his letter to Schumer, seen in its entirety below, Gonzales responds to each of those points, as well as some others. — Byron York

February 24, 2003

Dear Senator Schumer:

Based on your public comments yesterday, I am concerned that you may have inaccurate and incomplete information about Miguel Estrada's qualifications and about the historical practice with respect to judicial confirmations. Therefore, I write to respectfully reiterate and explain our conclusion that you and certain other Senators are applying an unfair double standard — indeed, a series of unfair double standards — to Miguel Estrada.

First, your request for confidential attorney-client memoranda Mr. Estrada wrote in the Office of Solicitor General seeks information that, based on our review, has not been demanded from past nominees to the federal courts of appeals. We are informed that the Senate has not requested memoranda such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department — including the seven nominees who had previously worked in the Solicitor General's office. Nor have such memoranda been demanded from nominees in similar attorney-client situations: The Senate has not demanded confidential memoranda written by judicial nominees who had served as Senate lawyers, such as memoranda written by Stephen Breyer as a Senate counsel before Justice Breyer was confirmed to the First Circuit in 1980. Nor has the Senate demanded confidential memoranda written by judicial nominees who had served as law clerks to Supreme Court Justices or other federal or state judges. Nor has the Senate demanded confidential memoranda written by judicial nominees who had worked for private clients.

The very few isolated examples you have cited were not nominees for federal appeals courts. Moreover, those situations involved Executive Branch accommodations of targeted requests for particular documents about specific issues that were primarily related to allegations of malfeasance or misconduct in a federal office. We respectfully do not believe these examples support your request. Our conclusion about the general lack of support and precedent for your position is buttressed by the fact that every living former Solicitor General (four Democrats and three Republicans) has strongly opposed your request and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. In short, the traditional practice of the Senate and the Executive Branch with respect to federal appeals court nominations stands in contrast to your request here and supports our conclusion that an unfair double standard is being applied to Miguel Estrada. (Also, contrary to your suggestion yesterday, please note that no one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001.)

Second, you suggested that "no judicial nominee that I'm aware of, for such a high court, has ever had so little of a record." I respectfully disagree. Miguel Estrada has been a very accomplished lawyer, trying cases before federal juries, briefing and arguing numerous appeals before federal and state appeals courts, and arguing 15 cases before the Supreme Court, among his other significant work. His record and breadth of experience exceeds that of many judicial nominees, which is no doubt why the American Bar Association — which you have labeled the "gold standard" — unanimously rated him "well-qualified." In noting yesterday that Mr. Estrada's career had been devoted to "arguing for a client," you appeared to imply that only those with prior judicial service (or perhaps "a lot of [law review] articles") may serve on the federal appeals courts. But five of the eight judges currently serving on the D.C. Circuit had no prior judicial service at the time of their appointments. Indeed, Supreme Court Justices Rehnquist, White, and Powell — to name three of the most recent — had not served as judges before being confirmed to the Supreme Court. And like Mr. Estrada, two appointees of President Clinton to the D.C. Circuit (Judge David Tatel and Judge Merrick Garland) had similarly spent their careers "arguing for a client," but were nonetheless confirmed.

As the Chief Justice noted in his 2001 Year-End Report, moreover, "[t]he federal Judiciary has traditionally drawn from a wide diversity of professional backgrounds." The Chief Justice cited Justice Louis Brandeis, Justice John Harlan, Justice Byron White, Judge Thurgood Marshall (as nominee to the Second Circuit), Judge Learned Hand, and Judge John Minor Wisdom as just a few examples of great judges who had spent virtually their entire careers "arguing for a client" before becoming Supreme Court Justices or federal appeals court judges. As these examples show, had the "arguing for a client" standard been applied in the past, it would have deprived the American people of many of our most notable appellate judges. Based on our understanding, this standard has not been applied in the past. This further explains why we have concluded that an unfair double standard is being applied to Miguel Estrada.

Third, you stated that "when you went to those hearings, Mr. Estrada answered no questions." The record demonstrates otherwise. Mr. Estrada answered more than 100 questions at his hearing (and another 25 in follow-up written answers). He explained in some detail his approach to judging on many issues, and did so appropriately without providing his personal views on specific legal or policy questions that could come before him — which is how previous judicial nominees of Presidents of both parties have appropriately answered questions. Indeed, at his hearing, Mr. Estrada was asked and answered more questions, and did so more fully, than did President Clinton's appointees to this same court. Judge David Tatel was asked a total of three questions at his hearing. Judges Judith Rogers and Merrick Garland were each asked fewer than 20 questions. The three appointees of President Clinton — combined — thus answered fewer than half the number of questions at their hearings that Mr. Estrada answered at his hearing. What is more, like Mr. Estrada, both Judge Rogers and Judge Garland declined to give their personal views on disputed legal and policy questions at the hearing. Judge Rogers refused to give her views when asked about the notion of an evolving Constitution. And Mr. Garland did not answer questions about his personal views on the death penalty, stating that he would follow precedent. In short, we believe that your criticism of Mr. Estrada's answers at his hearing reveals that another unfair double standard is being applied to Mr. Estrada.

Fourth, you stated that the Founding Fathers "came to the conclusion that the Senate ought to ask a whole lot of questions" of judicial nominees. We respect the Senate's constitutional role in the confirmation process, and we agree that the Senate should make an informed judgment consistent with its traditional role and practices. But your characterization of the Senate's role with respect to judicial nominations is not consistent with our reading of historical or traditional practice. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." The Federalist 76. The Framers anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." Id. Moreover, the Senate did not hold hearings on judicial nominees for much of American history, and the hearings for lower-court nominees in modern times traditionally have not included the examination of personal views that you have advocated. (My letter of February 12, 2003, to Senators Daschle and Leahy contains more detail on this point.) Indeed, just a few years ago, Senator Biden made clear, consistent with the traditional practice, that he would vote to confirm an appeals court judge if he were convinced that the nominee would follow precedent and otherwise was of high ability and integrity.

In short, it appears that you are seeking to change the Senate's traditional standard for assessing judicial nominees. We respect your right to advocate a change, but we do not believe that the standard you seek to apply is consistent with the Framers' vision, the traditional Senate practice, or the Senate's treatment of President Clinton's nominees. Rather, we believe a new standard is being devised and applied to Miguel Estrada.

Fifth, you stated yesterday that a "filibuster" is not an appropriate term to describe what has been occurring in the Senate. We respectfully disagree. Democrat Senators have objected to unanimous consent motions to schedule a vote, and they have indicated that they will continue to do so. That tactic is historically and commonly known as a filibuster, and is a dramatic escalation of the tactics used to oppose judicial nominees. Indeed, in 1998, Senator Leahy stated: "I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998). In our judgment, the tactics now being employed again show that Miguel Estrada is receiving differential treatment.

* * *

As I have said before, I appreciate and respect the Senate's constitutional role in the confirmation process. You have expressed concern that you do not know enough about Mr. Estrada's views, but you have not submitted any follow-up questions to him. We respectfully submit that the Senate has ample information and has had more than enough time to consider questions about the qualifications and suitability of a nominee submitted more than 21 months ago. Most important, we believe that a majority of Senators have now concluded that they possess sufficient information on Mr. Estrada and would vote to confirm him. We believe it is past time for the Senate to vote on this nominee, and we urge your support.


Sincerely,
/s/
Alberto R. Gonzales
Counsel to the President


Copy: The Honorable Bill Frist
The Honorable Thomas A. Daschle
The Honorable Orrin Hatch
The Honorable Patrick Leahy


TOPICS: Constitution/Conservatism; News/Current Events
KEYWORDS: albertogonzales; albertogonzalez; estrada; filibuster; schumer
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To: Howlin; ~Kim4VRWC's~; A Citizen Reporter; alisasny; alnick; anniegetyourgun; Amelia; ArneFufkin
For Mr. Estrada to get the green light from the Democratic Party, he has to personally cut out and dismember an unborn baby in front of the ghoulish Democratic Senators.
41 posted on 02/25/2003 6:44:22 PM PST by Cultural Jihad
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To: Utah Girl
Great letter, and the heat is turned up another notch.

President Bush is a real moron, without a doubt. Always misunderstimated. He's now got the Dimwits destroying the UN, along with the UN. The next Republican President in 2008 is going to have some awfully big shoes to fill.

Isn't strategery great? Way to go Dubya. Character matters.
42 posted on 02/25/2003 6:48:48 PM PST by RobFromGa (It's Time to Bomb Saddam!)
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To: Cultural Jihad
LOL......you could be right!
43 posted on 02/25/2003 6:58:15 PM PST by Howlin (Time to pull the trigger!)
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To: Utah Girl; Freee-dame
Chuck Shumer is way out of his league! The Texan's posse is powerful!
44 posted on 02/25/2003 7:04:13 PM PST by maica (Anti-tyranny Activist)
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To: RobFromGa
In the morning, I'm going to call both Hitlery's office and Schumee's and....

Tell them that I read the letter". I think these are the two folks who should get hit with the negatives.

Calling them the "Obstructionist Party" might also be a good move together with a comment that tommor, you will become a registered Republican.

Jam it to Hitlery!!

God, how I'd love to fax her that old Hillary "chicken in a bucket" ad!! I'm too nice sometimes.

45 posted on 02/25/2003 7:06:38 PM PST by Sacajaweau
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To: ohioWfan
I live in a county that is 90% plus hispanic.I have a lot of respect for the hispanics as they have for me.I have been around people that are like schumer most of my life and they are a bunch of lowlife skunks.We have ranch owners that are hispanic and we work together every day its not about anglo and hispanic it about respect and friendship.
46 posted on 02/25/2003 7:10:35 PM PST by solo gringo
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To: Howlin; Miss Marple
Do you suppose Schumer even realizes he's been bested?
47 posted on 02/25/2003 7:16:39 PM PST by savedbygrace
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To: savedbygrace
ROFLMAO.......you have MADE my night!

Probably not. And that sort of makes it all the better, doesn't it? Everybody else knows except HIM!

48 posted on 02/25/2003 7:17:31 PM PST by Howlin (Time to pull the trigger!)
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To: solo gringo
Fantastic! That's what it's all about solo!

(NOW I understand your screenname!)

49 posted on 02/25/2003 7:21:15 PM PST by ohioWfan (You're going DOWN, Saddam........Sincerely, Eric)
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To: stylin19a
You forgot: Hispanic!!
50 posted on 02/25/2003 7:30:05 PM PST by CyberAnt ( Yo! Syracuse)
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To: Howlin
Well, well, well. Wish I had this yesterday to include in my e-mail demanding he confirm Estrada. Think I'll fax him a copy in the event he claims he didn't see the original and carbon copy some media outlets. Thanks for calling it to my attention and let's hope it grows legs.
51 posted on 02/25/2003 7:52:41 PM PST by StarFan
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To: StarFan
I knew you'd put this to good use!
52 posted on 02/25/2003 8:03:16 PM PST by Howlin (Time to pull the trigger!)
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To: Howlin
I just came back to read this again. It is even better the second time you read it.

I especially like how he uses Schumer's term "arguing for a client" and repeats it several times, showing Schumer how ridiculous his statement was.

Schumer is no doubt having his staff prepare a response, and the staff members are no doubt arguing over which one will have to tell Schumer that he has been bested. HA!

53 posted on 02/25/2003 8:11:25 PM PST by Miss Marple
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To: Howlin
Thanks AGAIN, Howlin !!
54 posted on 02/25/2003 8:14:07 PM PST by lorrainer (EVERYBODY thinks I'm paranoid!)
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To: Howlin
Why do I get the feeling that the Dems breach of protocol in this case gets one in return (no more filibusters for wimps)?

Reminds me of a line from early on in the run of Buffy the Vampire Slayer: "Now, we can do this the hard way or, actually, there's JUST the hard way."
55 posted on 02/25/2003 8:14:51 PM PST by hchutch ("Last suckers crossed, Syndicate shot'em up" - Ice-T, "I'm Your Pusher")
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To: Howlin
What?

You've never seen an idiot pimp-slapped into a coma by someone named Gonzales before?


56 posted on 02/25/2003 8:57:37 PM PST by Luis Gonzalez (The Ever So Humble Banana Republican)
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To: hchutch
Howlin-caught this FABULOUS LETTER from the WH counsel to that creepy NY senator and could not believe how marvelously this author stripped Schumer of all of his points against Estrada. Dealing with liars is always tough-but piercing um with the truth is so very easy. This letter is awesome!
57 posted on 02/25/2003 8:57:42 PM PST by Republic (tommy daschle is a WEASEL OF MASS DISTORTION (tractorman)-so truthful, it almost HURTS!)
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To: Howlin
Great letter ! Thanks for the ping.
58 posted on 02/25/2003 8:57:53 PM PST by nopardons
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To: Miss Marple
I am sure this letter (being in NRO) will make it into James Taranto's "Best of the Web" on WSJ's "Opinion Journal" -- probably THE best-read site and even better than getting into the print WSJ. Might even be an opening into getting onto the dead-tree version as well...

One of my favorite parts was when he called them "Democrat Senators". That drives them crazy! They'll say "DemocratIC! DemocratIC! get it right!" It reminds me of Young Frankenstein -- "No, it's Franken-STEEN!"
59 posted on 02/25/2003 9:19:53 PM PST by Jerez2
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To: Utah Girl
Excellent. The leftists may run to the Sunday morning talk shows and spin, but the White House is coming after them.
60 posted on 02/25/2003 9:58:11 PM PST by swheats
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