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The Federalist Society 1 THE FEDERALIST SOCIETY Judicial Confirmations Hon. C. Boyden Gray, Wilmer Cutler Pickering Nan Aron, President, Alliance for Justice Leonard Leo (Moderator) Thursday, February 20, 2003 1 1 FEDERALIST SOCIETY 2 Judicial Confirmations 3 MR. LEO: My name is Leonard Leo, and I 4 am Executive Vice President of the Federalist 5 Society. It is my pleasure to welcome everyone to 6 this afternoon's debate on the judicial 7 confirmations process. 8 All of you in this room, and many 9 watching on C-SPAN this afternoon, are at least 10 somewhat familiar with the current conflict in the 11 United States Senate regarding the nomination of 12 Miguel Estrada to serve as a judge on the federal 13 appeals court here in Washington, D.C., which is 14 often referred to as the second most powerful court 15 in the country. The Senate is about to enter week 16 two of a filibuster in opposition to the 17 nomination, and right now, both sides in this 18 battle show no signs of backing down. Senate 19 Democrats believe that Mr. Estrada has not been 20 forthcoming respecting his views, and Senate 21 Republicans contend he has provided ample 22 information and is extremely well qualified to 2 1 serve. 2 The Estrada battle brewing on the floor 3 of the Senate has, to be sure, significant 4 political undercurrents, but also is a reflection 5 of a far deeper division over how the judicial 6 confirmation process should be carried out. Over 7 the past couple of decades, with increasing 8 frequency, the ideology of judicial nominees has 9 been scrutinized. The scrutiny sometimes touches 10 generally on judicial philosophy but, in many 11 instances, also has involved questions about 12 political philosophy, policy preferences, and how a 13 nominee might, if confirmed to serve on the federal 14 bench, decide cases in particular areas of the law, 15 such as abortion and civil rights. Some believe it 16 is entirely appropriate to consider a nominee's 17 ideology in order to ascertain how he or she might 18 decide cases in particularly controversial areas. 19 Senator Charles Schumer has been an ardent defender 20 of this perspective, saying, "It's not that we 21 don't consider ideology. It's that we don't talk 22 about it openly. It is high time that we return to 3 1 a more open and rational consideration of ideology 2 when we review nominees." 3 In contrast, White House Counsel Alberto 4 Gonzalez has argued in several letters to the 5 Senate that ideological considerations have no 6 place in the Senate's present consideration of 7 nominees. Quoting a statement by Senator Joseph 8 Biden from 1997, Judge Gonzalez' most recent letter 9 states, "Any person who is nominated for the 10 district or circuit court, who in fact any Senator 11 believes will be a person of their word and follow 12 stare decisis, it does not matter to me what their 13 ideology is, as long as they are in a position 14 where they are in the general mainstream of 15 American political life." 16 It also bears noting that views about 17 this process may, for some, be driven by the 18 Supreme Court's decision in Bush v. Gore. Several 19 scholars, most notably Bruce Ackerman of Yale Law 20 School, have suggested that a President who 21 supposedly holds his office as a result of a flawed 22 Supreme Court decision should not be permitted to 4 1 appoint new members to that court. And more than a 2 few have extrapolated from this argument and 3 implied that President Bush's appointment authority 4 in general should not be recognized in the same way 5 as other Presidents who have preceded him. 6 Here with us today to sort out some of 7 these competing views is former White House Counsel 8 C. Boyden Gray and Alliance for Justice President 9 and Founder, Nan Aron. 10 Mr. Gray is presently a partner in the 11 Washington, D.C. law firm of Wilmer Cutler & 12 Pickering and is Chairman of the Committee for 13 Justice, a group that has been quite vocal in 14 supporting President Bush's judicial nominees. He 15 served as White House Counsel during the first Bush 16 administration. 17 Nan Aron, the President of the Alliance 18 for Justice, founded that organization in 1979 and 19 has played a leading role in the public interest 20 legal movement nationwide. The Alliance for 21 Justice has been extremely active in the judicial 22 confirmations process, offering views about both 5 1 particular nominees as well as the way in which the 2 process should function. 3 Mr. Gray and Ms. Aron will each have four 4 minutes for initial remarks, then I will ask a 5 couple of questions, and we will then open the 6 floor up for questions -- and I would stress 7 questions -- from the audience. No filibustering; 8 at least not here. 9 Boyden. 10 MR. GRAY: Thank you, Leonard. The 11 question of ideology and judicial nominations is an 12 issue that's probably never going to get totally 13 resolved. The simple point that I want to make, 14 which I will try to illustrate with the example of 15 Estrada, is that the Constitution commits the 16 nomination process initially to the President, and 17 if the public doesn't like what the President does, 18 they can change the President. The Senate then has 19 an obligation to vote on the President's 20 nomination. One can argue back and forth about 21 whether the Senate should be able to take ideology 22 equally into account, as the President does. I 6 1 would argue that it shouldn't, but I would also 2 argue that, in a sense, it's moot because if 51 3 senators decide to reject a nominee, there's no way 4 to tell exactly what motivated any one of those, or 5 all of those, 51 Senators. The key point, though, 6 is that the 51 should have the chance to vote. 7 Whether it's a situation where one party 8 controls the Senate and another the White House, 9 can one committee bottle up a nominee? I would 10 argue, no. The full Senate should have a vote, and 11 the same is true, of course, when one party 12 controls both bodies. A filibuster should not be 13 used to block the Senate from working its will. 14 For 200 years, we didn't do this. If filibusters 15 were thought to be part of the process for 16 considering judicial nominations, someone probably 17 would have thought of it before today. 18 Now, in the case of Miguel Estrada, the 19 ideological issue, of course, is quite confused 20 because there are two arguments that the Democrats 21 are making against him. One is that he is a total 22 cipher, has left no paper trail, it's impossible to 7 1 make a judgment about him because he has left no 2 paper trail and has answered no questions. The 3 other argument against him, which I had to face 4 last night on television, is that he's a 5 conservative activist, and therefore must on all 6 accounts be stopped from getting on the bench. 7 You can't have it both ways; he can't be 8 both the cipher and a conservative activist. 9 Actually, I think he's neither. Certainly, the 10 public record, which is fairly complete -- 15 11 arguments in the Supreme Court; with briefs you can 12 look at. To be sure, they've been edited by his 13 colleagues, but his oral arguments were not, and 14 his testimony was not, and his testimony was quite 15 complete. He answered questions about judicial 16 philosophy, generally speaking, about judicial 17 review, about the scope of review, about scope of 18 congressional authority, about statutory 19 construction, about how to look at environmental 20 issues. He went across the board and answered 21 questions. 22 What he refused to answer were specific 8 1 questions. "Do you agree with Roe v. Wade? Do you 2 agree with two federal circuit cases on the death 3 penalty? Do you agree or do you not agree with two 4 cases on product liability?" He should have 5 refused. As Lincoln said, "We should not ask 6 nominees for their position on specific issues, and 7 they should not answer. And if they should, we 8 should despise them for it because it would be to 9 compromise the independence of the judiciary for 10 them to commit themselves." And that would be a 11 violation of separation of powers, it would be a 12 violation of the ABA rules. 13 So, it's not clear to me that ideology 14 is, on the surface anyway, what bothers people 15 about Estrada. I don't really know what it is, but 16 the Senate is entitled to vote on him, and they 17 should. He has a highly qualified rating from the 18 ABA, a record that any one of us would die to have, 19 at Columbia, and at Harvard Law School, and the 20 Solicitor General's Office. Anyone who's served 21 with such distinction for President Clinton and has 22 so much support from many of his top lawyers, Ron 9 1 McLean, Seth Waxman, Randy Moss, should be 2 acceptable to the American people.
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