Posted on 09/05/2003 1:16:24 AM PDT by Jim Robinson
Capitol Hill (CNSNews.com) - After having his nomination blocked seven times and spending more than 28 months with his legal career in limbo, President Bush's nominee to the U.S. Circuit Court of Appeals for the District of Columbia - and a likely candidate for any Supreme Court vacancy that might occur during Bush's tenure - has withdrawn his own nomination."It's a terrible day for justice in America when a partisan minority of the Senate can obstruct an extremely well-qualified nominee to the federal bench, to the point of forcing Miguel Estrada to withdraw his nomination," said Sen. John Cornyn (R-Texas), chairman of the Senate Judiciary Subcommittee on the Constitution.
President Bush was outraged at the loss of his nominee, who had been unanimously rated "well-qualified" by the American Bar Association.
"Mr. Estrada received disgraceful treatment at the hands of 45 United States Senators during the more than two years his nomination was pending," Bush said in a statement issued Thursday on Air Force One.
"Despite his superb qualifications and the wide bipartisan support for his nomination, these Democrat Senators repeatedly blocked an up-or-down vote that would have led to Mr. Estrada's confirmation," Bush said.
"The treatment of this fine man is an unfortunate chapter in the Senate's history," the president added.
Estrada's life on hold for two-and-a-half years pending Senate vote
Estrada served as assistant solicitor general in the Justice Department, arguing and winning several cases before the U.S. Supreme Court before returning to a "very lucrative" private practice prior to his May 9, 2001, nomination. Cornyn noted that Estrada's life has essentially been on hold since.
"This good man was nominated by President Bush nearly two-and-a-half years ago, and since that time he has faced nothing but obstruction from a partisan minority of the Senate that knew a bipartisan majority stood ready to confirm him," Cornyn said.
"I applaud Mr. Estrada for his patient willingness to serve his country, despite a battle that took its toll on his life and his family," Cornyn added.
A minority of 45 senators, composed of most Democrats and Sen. Jim Jeffords (I-Vt.), used the Senate's "Cloture Rule" to block a vote on Estrada's nomination seven times, despite the fact that a majority of senators supported him. Democrats John Breaux of Louisiana, Zell Miller of Georgia, Bill Nelson of Florida and Ben Nelson of Nebraska refused to participate in the filibuster.
C. Boyden Gray, chairman of the Committee for Justice (CFJ), called the Democrat minority's treatment of Estrada "abusive."
"Democrats, orchestrated by Sen. Tom Daschle (D-S.D.) and far-left Washington special interests conspired to deny Mr. Estrada a vote due to their unprecedented use of the filibuster," Gray said. "Sadly, Estrada's withdrawal will only encourage Democrats in the use of the filibuster."
Jay Sekulow, chief counsel of the American Center for Law and Justice, said using the filibuster to block judicial nominees violates the supreme law of the land.
"The unconstitutional use of the filibuster has not only badly tarnished the judicial confirmation process, but now has [also] eliminated one of the most qualified nominees from the federal appeals court," Sekulow said.
The Constitution specifies each circumstance in which a so-called "super-majority" of more than 50 percent plus one vote is required for the Senate to ratify an action. The clause providing the Senate's authority to confirm presidential nominees does not contain such a requirement.
Democrats Blame Bush for Nomination's Failure
Sen. Chuck Schumer (D-N.Y.) argued that White House "arrogance," not Democrats obstructionism, was responsible for Estrada's failure to receive a vote in the Senate.
"For the advise-and-consent to work, nominees have to be forthright and answer questions when they come before the Senate," Schumer said. "To confirm Mr. Estrada, when the White House treated the constitutional process with such arrogance, would have permanently changed the advise-and-consent process."
The "Advice and Consent Clause," to which Schumer referred, states that the president "shall nominate and, by and with the advice and consent of the Senate, shall appoint" judges. Senate Democrats had sought a "co-equal role" in choosing judicial candidates prior to their nomination, despite the constitutional limitation of their role to debating and voting on the nominees the president has already chosen.
Notwithstanding that limitation, Schumer continued to claim it was the president's fault that Estrada was never allowed a Senate confirmation vote.
"As long as the administration continues to do this, we will continue to block the judges they nominate that are far beyond the mainstream or those judges that refuse to answer questions," Schumer charged.
Estrada answered 125 questions during his confirmation hearing, which lasted some eight hours, and responded to hundreds more in writing. Sean Rushton, who works with Gray at CFJ, said it was only the very few questions Estrada could not answer that bothered Schumer and his Democrat colleagues.
"What he wouldn't do was answer particular questions about cases over which he might have to rule in the future," Rushton explained, "which are absolutely proper for a judicial nominee to decline [to answer]."
Estrada would only commit to "follow the law," the Constitution and Supreme Court precedents in response to such questions. His answer was rejected by liberal Democrats.
Sen. Ted Kennedy (D-Mass.) called Estrada's withdrawal "a victory for the Constitution, the nation's judicial system and the American people."
"The White House cannot withhold information on nominees that the Senate needs to exercise its advise-and-consent responsibly," Kennedy claimed.
Rushton disputed Kennedy's premise.
"At the end of the day, what Senators Schumer and Kennedy are really saying is not that the 'advice and consent' function was allowed to work," Rushton explained, "but rather that they successfully derailed the 'advice and consent' function of the Senate and refused to give this nominee his fair due, which is an up or down vote."
Kennedy and other Democrats on the Judiciary Committee demanded to see all of Estrada's memoranda and working papers from his time in the solicitor general's office. The records are protected by attorney-client privilege and Estrada has no legal authority to disclose them.
Similar documents have only been released in the past when requests were made for a specific memo to address a specific question about a nominee, and every living former U.S. Solicitor General, both Democrats and Republicans, opposed the release of the information.
Democrats' opposition based on fear of Supreme Court appointment
Gray believes the motivation behind the Democrats' opposition to Estrada has much more to do with their ultra-liberal ideology than lack of information.
"At root, base politics drove the Democrats' decision to deny the President the chance to someday name the first Hispanic to the Supreme Court," Gray alleged. "That is what it was all about. They did not oppose Estrada because he was Hispanic. They opposed him because he was President Bush's Hispanic."
Gray called Estrada's decision "understandable," but said the withdrawal of his nomination "is a major loss to the nation, the court, constitutionalists, and most of all, to Latinos." He warned that, "Senate Democrats' disgraceful treatment of this superb nominee, and the double standard they applied, will be remembered."
Sekulow hopes that Estrada's decision will force the Senate leadership to see just how serious the situation has become and how dire the consequences to the president's nomination authority, and that that realization will spur them into action.
"It is time for the ... leadership to change the Senate rule requiring 60 votes to end a judicial filibuster," Sekulow said.
"It is clear that such a rule is unconstitutional and that Senate leadership can and should move immediately to implement a simple majority requirement of 51 votes to end the filibusters and send the remaining nominations to the full Senate floor for a vote," Sekulow concluded.
CNSNews.com Morning Editor Susan Jones and contributed to this report.
I swear I don't understand what has happened to the Senate. They take themselves way too seriously as "statesmen" and the "deliberative mind" of the country. It's be nice to see a free-for-all in there once in a while to shoo out the staleness.
Not to mention the STELLAR job Bush did of defending him.
</sarcasm off
Lessons of the Estrada Defeat
Legal Theory Blog ^ | September 4, 2003 | Prof. Lawrence Solum
Posted on 09/04/2003 5:47 PM CDT by pogo101
Withdrawal: What Does Estrada's Decision Mean?
In other words, anyone who is conservative will get blocked. And the Administration allowed the Dems - mind you the MINORITY party on the hill - to get away with it.
What explanation can Frist come up with for his ineptness in this matter?
We've done nothing but fed the gorillas. They'll get even more bold now. They figure that even as the minority they can run the show with impunity. And where is Frist? Fiddling while Rome burns!
Now "Conservatives" and "Hispanics" are supposed to be outraged at the Democrats.. And WE ARE. I am highly pissed at them for this ideological litmus test. (The very thing they are supposed to be so dead set against, by the way)
What the Senate Republicans fail to realize is that the outrage over this matter isn't limited to the Democrats. There's plenty to go around, for both sides of the isle.
I think "outrage" was the goal from the beginning and the entire excersize is supposed to help secure Hispanic & Conservative votes
It's insulting and our Senate is an embarrassment.
I haven't been this dissapointed in them since the impeachment debacle.
I simply believe they would rather have the issue than the solution.
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