Tuesday, November 12, 2002
Sin of omission: Wednesday's New York Times has an article on Senate confirmations of Bush's judicial nominations now that Republican control of the chamber is imminent.
The Democrat-controlled committee, along with the Times' editorial page, has come out against many of Bush's appeals court nominees (including those who have been rated well-qualified by the American Bar Association), because they are perceived as conservatives, even if there is little evidence to back up the assertion.
A case in point is the nomination of Miguel Estrada. Estrada has little as far as a paper trail goes into his ideology, though he is believed to be a conservative because Bush nominated him. Estrada was among the first group of appellate court nominees, but has never received a hearing.
The Times explains it this way:
In negotiations this week, Republicans tried to persuade the Democrats to include a vote on Miguel Estrada, a lawyer who has argued many cases before the Supreme Court and who has been nominated for the United States Court of Appeals for the District of Columbia Circuit, widely regarded as second in importance only to the Supreme Court. Republicans are eager to have Mr. Estrada in place on the appeals court as soon as possible to make him a more credible candidate for the Supreme Court.
Democrats had hoped to block Mr. Estrada's confirmation but now concede he should be easily confirmed next year after Mr. Bush renominates him.
Committee Democrats had asserted that Mr. Estrada is a conservative ideologue and demanded that the White House turn over to the committee his internal opinions when Mr. Estrada was an assistant solicitor general in the Justice Department.
The White House refused to provide the documents, and the ensuing dispute allowed Democrats to delay scheduling a vote. But a senior White House official said this week that the issue was now moot with Republican control of the Senate.
The documents that the Democrats were demanding were internal justice department documents. The White House rightly refused to release them to the Democrats who were on a fishing expedition.
The Times repeats the Democratic canard that these documents were the reason for the delay of Estrada's hearing. But, here lies the Times ideological sin of omission: every living solicitor general of the United States (both Republican and Democrat) signed a letter to outgoing Judiciary Committee Chairman Sen. Patrick Leahy telling him that he was out of line in asking for the documents.
That simple fact would reveal the Democrats' claims that they entitled to hold up the nomination until the documents are provided to be false.
Thankfully the ideological litmus-testing that had been occurring under Democratic control will stop when Republicans take back control.
Besides, the Democrats should take solace in the fact that the last Supreme Court justice the Senate approved who had no paper trail was a guy named Souter. Maybe they'll get lucky again.