1
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. But in any
3 event, let the full Senate vote. I would
4 personally accept the verdict of a majority vote.
5 Thank you.
6 MS. ARON: Thank you, Federalist Society,
7 for inviting me here. I'm always pleased to debate
8 and talk with my colleague, C. Boyden Gray. So,
9 it's a pleasure to be here. I think the nomination
10 of Miguel Estrada has everything to do with why
11 we're here, and also why the Senate's role in the
12 confirmation process is so important. We will have
13 a wonderful opportunity to see that role played out
14 over the next couple of weeks.
15 Let me begin by saying I'm always happy
16 to talk about the federal courts and what judges do
17 because what judges do has such a direct effect on
18 almost every aspect of American society. Federal
19 judges have a huge impact on the quality of the
20 water we drink, the air we breathe, the kind of
21 workplace protections that safeguard working
22 families across America, that have helped people of 10
1 color and women end discrimination in the
2 workplace. Federal judges are often the only
3 recourse that American's have for any redress of
4 any grievances. They can't often go to the federal
5 government. They may not be able to go to their
6 member of Congress. But the federal courts are
7 there to help everyone -- not just the rich, but
8 ordinary Americans.
9 This Administration, however, has a very
10 radical plan for changing that federal judiciary.
11 It has come up with a set of judges and nominees
12 who will turn the clock back on all of the rights
13 and protections that Americans have fought so hard
14 for over the past several decades. These nominees
15 will undermine our civil rights, will restrict a
16 woman's right to choose, attack the rights of
17 workers, and will overturn environmental
18 protections that have been in place for decades.
19 One nominee, for instance, Jeffrey Sutton
20 -- considered for a seat on the 6th Circuit Court
21 of Appeals -- argued before the Supreme Court that
22 a breast cancer survivor could not sue her state 11
1 employer under the Americans with Disabilities Act
2 after being fired by a woman supervisor who said
3 she didn't like sick people at the workplace.
4 One nominee, Deborah Cook, also nominated
5 to a seat for the 6th Circuit Court of Appeals,
6 decided in her role as a Supreme Court justice that
7 a corporation that exposed its workers to toxic
8 chemicals and then lied about it would not have to
9 compensate an employee who developed lung disease
10 as a result.
11 And one nominee, Carolyn Kuhl, named for
12 a seat on the 9th Circuit Court of Appeals, was one
13 of two lawyers in the Reagan Administration who
14 argued for the reinstatement of tax-exempt status
15 for Bob Jones University. These are the kind of
16 nominees that this President has put forward.
17 I will just conclude my opening statement
18 that it is up to the Senate. The Senate is not
19 just some marginal player in this game. The Senate
20 has a co-equal role. A co-equal role to decide to
21 withhold its consent if it believes that a nominee
22 is not qualified. These are not nominees to any 12
1 position. These are people who will hold lifetime
2 positions. Look at our current Supreme Court
3 Justice Rehnquist, put on the court by President
4 Nixon. He has been there through seven presidents.
5 Once you put a judge on the bench, they are there
6 for life. Therefore, our Constitution asks the
7 Senate to take on a very important role. That is
8 to use all its care, all its concern, to make sure
9 that the people who become judges are the very best
10 people.
11 As this debate ensues, it is certainly
12 our view that Miguel Estrada does not merit a
13 lifetime appointment on the D.C. Circuit, the
14 second most important court in this nation. We are
15 calling on the Senate to do the hard thing, but the
16 right thing, which is, in the end, withhold its
17 consent on his nomination.
18 Thank you.
19 MR. LEO: I'll throw out a couple of
20 questions to our two speakers, and then we'll open
21 up the floor for questions from the audience.
22 First, a question about Constitutional 13
1 process. The Constitution says that the President
2 nominates with the advice and consent of the
3 Senate. The Senate is not supposed to be a rubber
4 stamp of the President's nominees, and many would
5 also say it was not intended to second-guess each
6 nominee and reinvent the vetting process that one
7 hopes a President undertakes.
8 So, how do we strike a balance here?
9 What, in your view, are the appropriate parameters
10 for legitimate Senate scrutiny of a judicial
11 nominee? Boyden, why don't you start us, and then
12 Nan.
13 MR. GRAY: I think certainly we start
14 with integrity and character; that should be a
15 given. But it's not as easy as it might appear on
16 the surface. Then you go to judicial capacity,
17 intellectual fire power, legal ability. Then you
18 go, I think, for temperament. The fourth thing is,
19 and I think it's a legitimate inquiry, "What is the
20 general philosophy of the nominee in question?"
21 Where I think everyone should agree a line should
22 be drawn is committing on specific issues. That, I 14
1 think, is and should be off limits. It has
2 traditionally been off limits, and I think it
3 should stay off limits.
4 MR. LEO: Nan.
5 MS. ARON: Well, I would certainly agree
6 that you want judges who are of excellent caliber.
7 You want judges of impeccable honesty. You want
8 judges who will be fair, who will be balanced, and
9 I think equally important, you want judges with a
10 demonstrated commitment to equal justice. You want
11 to know that people who are going to be on the
12 federal courts interpreting laws that affect our
13 everyday lives are people who have, as lawyers,
14 done work, contributed to efforts to help people
15 who are underrepresented in society, have a fair
16 shake and equal access to the courts.
17 And so, therefore, in this particular
18 scheme, where we're talking about judges, you want
19 a judge who will be fair and put his or her own
20 personal views aside and be able to give each party
21 who appears before that judge a fair shake.
22 MR. LEO: Now, this may get a little 15
1 complicated because of the difference between
2 courts of appeals and the Supreme Court and the
3 role the President plays. But let me throw out
4 just a couple of follow-ups here. Let's take some
5 particular questions that a Senator might be able
6 to ask.
7 For example, would it be appropriate for
8 a Senator to ask a nominee during a hearing, "What
9 are your views of cases such as Roe v. Wade or
10 Brown v. Board"? Is it appropriate for a Senator
11 to ask about a specific case and that nominee's
12 views about whether that case was rightly or
13 wrongly decided? Boyden?
14 MR. GRAY: I think at some point, a case
15 becomes so embedded in the life of the country,
16 it's okay to say it's rightly or wrongly decided
17 because that individual is not going to have
18 anything to do about it as a judge. Brown
19 certainly is in that category, and I would argue
20 that so is Marbury v. Madison, for example.
21 Roe v. Wade gets more tricky because it's
22 such a code word for a whole tangled set of issues 16
1 that are on the periphery that have not all yet
2 been decided, so it's very, very difficult once you
3 get into that. While Roe v. Wade is settled law,
4 some issues peripheral to it are not. So, I think
5 that gets into very dangerous territory, anything
6 that's a live issue today. Certainly, equal
7 protection is not; it seems to me the basic
8 questions have long been settled. But certainly,
9 there are issues one has to be careful about.
10 If you look at the question that was
11 asked of Estrada -- "What Supreme Court case do you
12 disagree with in the last 40 years?" is what they
13 asked him. When I said you can't ask anybody about
14 a case that's recent enough that all the
15 permutations and combinations have not yet been
16 resolved, his detractors said, "Oh, no, no, we're
17 talking about any case going way, way back." And
18 of course, in the congressional debate, people say,
19 "Well, he could have talked about Plessie v.
20 Ferguson. What does he think about separate but
21 equal?" But that case was decided a lot longer
22 than 40 years ago. I think any case within the 17
1 last 40 years is problematic.
2 MR. LEO: Nan.
3 MS. ARON: That's ridiculous. Roe v.
4 Wade is one of the landmark cases of the last
5 century. It's the case that gave women in this
6 country -- rich women, poor woman, old women, young
7 women -- the right to believe that the Constitution
8 applied to them, as well as to their male
9 counterparts. Of course you want to know what a
10 nominee thinks about Roe v. Wade.
11 Let me tell you all a little story. That
12 is, when Clarence Thomas was up for his hearing for
13 elevation to the Supreme Court, he walked up to the
14 table, he swore on a Bible he would tell the truth,
15 the whole truth, nothing but the truth, and then he
16 was asked a series of questions about Roe v. Wade.
17 To everyone's shock, he didn't have an opinion
18 about Roe v. Wade. Moreover, he had never talked
19 about Roe v. Wade to anyone, it turned out, even
20 though he was at Yale Law School when Roe v. Wade
21 was decided. He didn't really have any view, he
22 said, on the issue, even though his own sister had 18
1 had an abortion. Now, this is not to cast doubt on
2 Clarence Thomas's integrity -- although I do need
3 to add that a year later, he joined with Justice
4 Scalia in seeking to overturn Roe v. Wade. This
5 is a story to indicate that it is absolutely
6 imperative for members of the Senate to find out
7 what a nominee's view is about such a critical
8 protection as the right to choose. Miguel Estrada,
9 at his hearing, didn't have a view on abortion or
10 Roe v. Wade or affirmative action, for that matter,
11 or the rights of immigrant workers to a safe
12 workplace. He had no view on Romer v. Evans,
13 couldn't name justices that he admired most or
14 decisions he admired least.
15 My point is that when you're up for the
16 second most important court in the country, the
17 Senate is not doing its job unless it finds out
18 from people like Miguel Estrada just what their
19 views are.
20 MR. LEO: But you would acknowledge it's
21 a hard line to draw. Neither of you are suggesting
22 that we would want to predetermine outcomes in 19
1 cases during a confirmation hearing, are you?
2 MS. ARON: No one is saying that you should be
3 able to ask a nominee about a case that is upcoming
4 in the Court. But this is settled law. In fact,
5 these nominees are coached by the White House now,
6 and were coached by the White House during the
7 Reagan and Bush years, when they're asked questions
8 about such issues such as Roe v. Wade, to reply, "I
9 will follow settled law." Well, we know from
10 Justice Thomas, and we know from hundreds of other
11 nominees who have gone before that Senate Judiciary
12 Committee, and pledged to that committee, looking
13 each Senator directly in the eye, "I will follow
14 settled law." And the minute they're confirmed,
15 they will do exactly what they want to do.
16 MR. LEO: Boyden.
17 MR. GRAY: I find this all so dizzying,
18 really, because when President Bush 41 was elected,
19 we -- Attorney General Thornburg and I -- were
20 asked down to the Hill, where we were read the riot
21 act by Senators Biden and Kennedy and Hatch and
22 Thurmond, Knoeck and Leahy, that under no 20
1 circumstances would they even grant a hearing to
2 anyone that they caught as having been asked by the
3 Administration about their views on any specific
4 issue. We said we won't do that; don't worry.
5 And they sent a Senate questionnaire --
6 as they have all throughout the Clinton years.
7 Question: Have you been asked about your views on
8 a specific issues? The point being, if you have,
9 you're out, you're finished, if the White House has
10 done this. You cannot do this.
11 Even if you do, you can't be sure, over
12 the course of a judicial lifetime, whether the
13 person is going to act the way you want them to
14 act. The most famous example, of course, is Oliver
15 Wendell Holmes, who constantly frustrated his
16 former boss, Theodore Roosevelt, who put him on the
17 court. They practically had a total falling out,
18 even though they'd been very, very close personal
19 friends prior to the nomination. The independence
20 of the judiciary is such a central part of the
21 greatness of this country that to mess with it
22 seems to me to be a very, very risky thing. 21
1 In a footnote, I would say that, in
2 answer to questions, Estrada has indicated who he
3 admires -- Emalia Kurst[?]; Kennedy, for whom he
4 had clerked; and Justice Powell. He has said who
5 his models are. I don't know where this thing
6 comes that he won't answer that question. He has
7 answered that question.
8 MS. ARON: Well, I just need to add one
9 thing. Several months ago, a judge on the D.C.
10 Circuit Court of Appeals, Laurence Silberman, I
11 think appeared before the Federalist Society and
12 made the statement that he, in fact, coached
13 nominees and urged nominees to say as little as
14 they could during their hearings. In fact, he
15 talked about the nomination of Antonin Scalia from
16 the D.C. Circuit to the United States Supreme Court
17 and said I told that Scalia, don't you answer those
18 questions; don't say a word. And in fact, Scalia
19 didn't answer any questions, the Senators hushed
20 up, and that was it. He was confirmed without the
21 public or the Senate having the opportunity to know
22 what Scalia thought or believed. 22
1 That's exactly what this White House is
2 counting on today, that it's coaching its nominees
3 so that they will say nothing and then, once they
4 become judges, carry out their own personal agendas
5 on the federal bench.
6 MR. LEO: Boyden, if I could change
7 subjects and ask you a question. There's a lot of
8 fuss about the pace with which nominees are being
9 considered, getting hearings, reaching the floor,
10 getting votes on the floor. How do you respond to
11 the point that the goal post was moved long ago
12 with Republican Senates holding up Democrat
13 nominees, and with some Republican Senators
14 scrutinizing them for ideology just as readily.
15 How would you respond to that charge?
16 MR. GRAY: I think the numbers show
17 pretty clearly over the three decades or so that
18 both parties have engaged in gamesmanship, if you
19 will, in the final year, before your term ends.
20 Certainly, the Republicans did it to President
21 Carter, even though they weren't in control of the
22 Senate at the time. The Democrats certainly did it 23
1 to us, to President Bush 41 at the end of his term.
2 And I will concede, as I have to, that Republicans
3 did it to President Clinton in the fourth -- it
4 slopped over into the fifth -- year, in the middle
5 of his presidency.
6 There were 29 judicial vacancies at one
7 point -- judicial emergencies, excuse me -- at one
8 point, 1996, 1997, which led the ABA to issue a
9 resolution urging confirmation, similar to the one
10 that the ABA just last August, issued in connection
11 with the current set of nominees.
12 At the end of the day, however, the
13 vacancies got filled. And in fact, there were
14 considerably fewer vacancies and fewer judges left
15 on the table, as it were, at the end of Clinton's
16 eight years than there were at the end of Bush 41.
17 That's somewhat counter-intuitive, but the numbers
18 are very, very clear. There were fewer vacancies
19 at the end of Clinton than there were at the end of
20 Bush 41. So Clinton, at the end of the day, got
21 his judges through, and the comparisons are always
22 difficult because you can play with numbers. 24
1 But what has happened is people have
2 tried to compare the fourth years with the first
3 two, and now three, years, of the Bush 43. That's
4 where the comparison should fall down. What you
5 should compare is apples and apples, the first two
6 and three years, and then compare the fourth year
7 and the fourth year. But the first three years
8 should be on a comparable basis.
9 What we see currently is an appellate
10 confirmation rate very dramatically lower than
11 President Clinton enjoyed, Bush, Reagan, and
12 Carter.
13 MR. LEO: Nan.
14 MS. ARON: Well, these numbers can be a
15 little dizzying. But let me just say -- and then
16 maybe we can agree not to have to talk about
17 numbers anymore -- at the end of the Bush
18 Administration, it turned out that a Democratic
19 Senate confirmed 64 judges, compared to only the 39
20 judges that a Republican Senate confirmed at the
21 end of Clinton's term.
22 But you can also look at the numbers in a 25
1 different way. That is, at the end of Bush Sr.'s
2 term -- now, there are 13 circuits in the country,
3 and at the end of his term, every circuit, all 13
4 circuits across the country, were dominated by
5 judges appointed by Republican presidents. At the
6 end of Clinton's eight-year term, only three of the
7 13 circuits had majority democratically-appointed
8 judges. So, I think that gives you a sense, in
9 terms of the number, in terms of the impact of what
10 those presidencies had on the composition of the
11 federal bench.
12 MR. GRAY: I don't understand the
13 numbers. I'd like to agree, but I have one
14 response, then we don't have to talk about numbers
15 anymore. President Clinton got his 190 per four-
16 year term. That's what it's come out to for the
17 last three decades. Total, he was only six shy of
18 what President Reagan got. There were nearly 100
19 vacancies in the federal judiciary at the time that
20 I talked about earlier in response to your
21 question, when there was a slowdown in the fourth
22 year of his first term. But at the end of the 26
1 Clinton Administration, there were only 41
2 vacancies, which were far fewer than there were at
3 the end of Bush 41. So those vacancies largely got
4 filled; you can never catch up completely because
5 the retirements always stay ahead of the
6 nominations.
7 MR. LEO: Nan, if I could allude to
8 something I mentioned in the introduction today,
9 how do you respond to the suggestion that this is
10 really all just about Bush v. Gore, and that Senate
11 Democrats don't really want to recognize the
12 President's authority here? Or, at a minimum, it's
13 about missed opportunities with President Clinton
14 failing to be effective in nominating his own
15 ideologues to the bench, not that they were
16 nominated and not confirmed, but that he didn't pay
17 as much attention to the courts as some people
18 would have wanted, and so now the Democrats in the
19 Senate are trying to cut losses. How would you
20 respond to that argument?
21 MS. ARON: Well, I would certainly
22 acknowledge that there is a group of law professors 27
1 around the country that do believe this President,
2 because he did not win the election, does not have
3 the authority to select Supreme Court justices, and
4 I think that view holds among many.
5 It's my view that, because this President
6 did not win the election, he does not have a
7 mandate to fill the federal bench with people who
8 will close the door to those who seek access to
9 justice. He does not have a mandate hostile to the
10 rights of most Americans -- all Americans -- in
11 this country. I think, in fact, you know, he will
12 select who he wants to select. Presidents do;
13 that's one of the great privileges and honors of
14 that Office.
15 My focus is really with the Senate
16 because the Senate has just as much power in our
17 system to say to the President, "We don't like your
18 choices." Senates don't like to do that. They
19 don't like to say no. Senators don't want to be
20 called obstructionists. They like to vote yes.
21 They love to vote for new programs, new initiatives
22 -- they don't like to be in the position of saying 28
1 no. But the fact is, this President's nominees are
2 so dangerous to the rights of most Americans that I
3 would hope that this Senate takes its
4 responsibility carefully and does step up to the
5 plate and vote no. And you know what? They're
6 going to have to do it not just once, not just
7 twice, but they're going to continue to have to do
8 it until this President who sends up people who
9 will not be harmful to all the concerns that we all
10 take for granted.
11 MR. LEO: Boyden.
12 MR. GRAY: To take Estrada as an example,
13 I challenge anybody to find anything in his record,
14 which is there, there's a lot of record to look at,
15 that suggests he doesn't have solicitude for
16 protection under the law. I don't see any
17 indication that he is anything but perfect for the
18 judiciary. I see nothing that anyone can find in
19 his record to suggest there should be any problem
20 with his confirmation, in any aspect of his
21 jurisprudential views, which are on record for
22 anyone to read. 29
1 Having said all that, I guess I'll
2 repeat, if 51 Senators decide to reject him or any
3 other of President Bush's nominees, at the end of
4 the day you can't get judicial review of that, take
5 it into the court saying five voted for the wrong
6 reasons. That's politics. That's the way the
7 system's supposed to work. I'd accept the 51-49
8 vote. I wouldn't like it. The Democrats might pay
9 a price for it in the next election. We'll see;
10 the public will tell us.
11 I would like to see the full Senate vote.
12 I don't know where the justification is for
13 insisting on a super-majority for this purpose, and
14 I've not heard Nan try to defend that, but that's
15 what the Democrats are doing. They're going to
16 filibuster in order to deny President Bush's
17 nominees.
18 MS. ARON: I have to tell you something,
19 Boyden. That is, in 1991, in an interview that you
20 and Jack Quinn had on the John McLaughlin show, you
21 in fact supported the notion of filibusters quite
22 strongly. 30
1 After all, I can't think of a better
2 instance where a filibuster is warranted than in
3 the nomination of Miguel Estrada. Here is a man
4 whose own supervisor, when he was in the Solicitor
5 General's Office -- his own supervisor -- said he
6 was too much of an ideologue to be a fair judge.
7 Here's a man who appeared before the Congressional
8 Hispanic Caucus. Now you would think you'd want to
9 be careful in appearing before the Congressional
10 Hispanic Caucus. He wouldn't share his views about
11 affirmative action, on the rights of workers to get
12 fair wages, and benefits, and in fact, he was even
13 disdainful of some of those rights.
14 In an interview he had with the Puerto
15 Rican Legal Defense Fund, he called the comments of
16 one of the officials at the Puerto Rican Legal
17 Defense and Education Fund bone-headed. Here's an
18 individual who interviewed clerks for Justice
19 Kennedy of the Supreme Court because he wanted to
20 make sure that no liberals clerked for Justice
21 Kennedy. At least two individuals have spoken
22 about the kinds of questions they were asked by 31
1 Miguel Estrada during their interview. One was
2 told point-blank by Miguel Estrada, you're too
3 liberal to be a clerk for Justice Kennedy. Now,
4 that doesn't suggest to me or to the very large
5 coalition of organizations that's come together to
6 oppose this confirmation a man who's going to be
7 open-minded, a man who won't allow his personal
8 predilections to interfere with his decision-
9 making. No. This guy, Miguel Estrada, has a very
10 specific agenda.
11 MR. GRAY: If you read his testimony, he
12 was quite complete on his answers about following
13 Adarand and about accepting Supreme Court
14 jurisprudence in the area of affirmative action. I
15 think you can't get too specific in answers to
16 those questions. But he answered all those
17 questions. Presumably, you would have asked
18 follow-up questions if you thought his answers were
19 incomplete. He had fewer follow-up questions than
20 almost any other nominee so far put through the
21 hearing process.
22 MS. ARON: Maybe I could just ask Boyden 32
1 a question because that raises, of course, the
2 issue of -- well, if we're not going to press
3 Miguel Estrada to answer those questions, where
4 were you or where was your Committee for Justice
5 when nominees for judgeships under the Clinton
6 Administration were being called back to one, two,
7 and sometimes three, hearings?
8 One nominee, Margaret Morrow, who was
9 being considered for a district court seat in
10 California, was asked her personal view on 160
11 initiatives that were decided by the voters in
12 California. Now tell me -- that is excessive; that
13 is ludicrous. But where was the outrage when men
14 and women who enjoyed bipartisan support for eight
15 years were pummeled the Senate Judiciary Committee
16 with inane questions much of the time?
17 My favorite question was Senator
18 Sessions, who used to call these nominees up and
19 say, "Now, tell me something, are you now or have
20 you ever been a member of the American Civil
21 Liberties."
22 MR. LEO: That sounds like a familiar 33
1 question, actually.
2 MR. GRAY: Have you now have you ever
3 been a member of the Federalist Society?
4 MS. ARON: No one asks that; they
5 probably should. But they don't have to because
6 all the nominees are members of the Federalist
7 Society. They wouldn't need to.
8 MR. LEO: Okay. I think we set the table
9 sufficiently, so why don't we open it up to
10 questions from the audience.
11 AUDIENCE PARTICIPANT: I have a question
12 for Nan Aron. I was confused by two things that
13 you said that seemed to be inconsistent. You said
14 several times, if necessary, let the Senate, full
15 Senate, vote no if they disapprove. I agree with
16 that completely. But then, you seemed to say don't
17 let the Senate vote at all because the majority of
18 the Senate will approve Estrada and other
19 nominations of the President. So, you seem, on one
20 hand, to advocate the democratic solution -- let
21 the full Senate vote up or down. But then, you go
22 to the anti-democratic solution, which is don't let 34
1 the Senate vote at all. And as we know, the
2 Appointments Clause of the Constitution requires a
3 simple majority vote, not a super-majority. So, I
4 wonder how you reconcile your democratic and anti-
5 democratic impulses.
6 MS. ARON: I guess I would start by
7 saying I don't view one as more democratic than the
8 other. I don't deem a vote on the merits more
9 democratic than a filibuster. I can't imagine a
10 more important opportunity for the Senate now to be
11 filibustering this nomination. And I think the
12 Senate should continue to filibuster Miguel
13 Estrada's nomination mainly because he has
14 stonewalled before the Committee. He's refused to
15 answer questions. He's refused to hand over six
16 years' worth of memoranda he wrote at the Solicitor
17 General's office.
18 It is my view that this is such an
19 important court to which he is being considered
20 that the Senate needs to have all the information
21 before it to make up its mind. And I don't think
22 the Senate has all the information. Once they do, 35
1 I certainly will work to see that his nomination is
2 defeated by the full Senate. But at this point,
3 the Senate does not have that opportunity to make
4 that determination.
5 MR. GRAY: He's got a fairly sizeable
6 track record -- 45 briefs or so, 15 oral arguments,
7 a full day of testimony. I don't know what more
8 you would want. You want his internal memoranda
9 from the Solicitor General's Office; that would set
10 a terrible precedent. That's never been done
11 before. All living former Solicitors General have
12 opposed it, including the Democratic Solicitor
13 Generals.
14 His briefs do reflect, however, what he
15 does. It's like a judge's opinion. And I
16 certainly don't think anybody would say, "Well, gee
17 whiz, let's get the early drafts of every opinion",
18 any more than we would demand of the media first
19 drafts of your stories before it went into the
20 editing process. What's the point of that anyway?
21 What you want to see is the finished product.
22 If you're worried about what the 36
1 spontaneous Estrada is like, go and read his oral
2 arguments. Go and re-read his testimony, where he
3 did answer, Nan, a dozen or so questions about
4 judicial philosophy on a range of topics from the
5 scope of judicial review, to the scope of
6 congressional authority, to a general approach to
7 questions of the environment and affirmative
8 action. He was quite discursive on those issues.
9 What he didn't give, as I said in my opening
10 remarks, was a specific answer to a specific
11 questions about, do you agree with two cases
12 involving the death penalty, do you agree with
13 protective orders in product liability cases in the
14 following contexts? Those were too specific for
15 him to answer and he didn't. He properly didn't.
16 MR. LEO: Question back there.
17 AUDIENCE PARTICIPANT: This question is
18 primarily for Mr. Boyden Gray, but I'd also love to
19 hear Ms. Aron's take on the issue.
20 A key role of the D.C. Circuit is to
21 decide cases that interpret federal statutes on the
22 environment, worker's protection, and civil rights. 37
1 With that in mind, isn't it fair for potential
2 judges who might sit on this court to say how they
3 stand on these federal statutes, especially set-in-
4 stone statutes like the Clean Air and Clean Water
5 Acts? With an Administration that's working to
6 weaken our clean air and clean water-enforced
7 protections, I would say it's more important than
8 ever to know where our justices stand on these
9 important issues.
10 MR. GRAY: To repeat for the third or
11 fourth time, he can't talk about a specific case.
12 He was very, very clear in answers to questions of
13 this very kind in his hearings that he would defer
14 in the area of the environment. He felt that
15 congressional legislation was due a very high
16 degree of deference. So, I don't think he's going
17 to go upsetting and undermining congressional
18 jurisprudence.
19 The D.C. Circuit, as you probably know,
20 adheres more closely to the so-called Chevron
21 Doctrine than probably any other circuit court, and
22 I think he was expressing complete adherence to the 38
1 approach that case sets out, which says all doubts
2 go to the agency and to the Congress. You know,
3 it's not the judge's job to redefine what the
4 statute meant.
5 MS. ARON: I guess I would say that
6 statutes like the Clean Water Act, the Clean Air
7 Act, worker protection statutes, are among our most
8 proud accomplishments over the past decade.
9 There's just no question about it. They are a
10 critical mark in our society's advance, in terms of
11 protecting Americans across the country.
12 You know, when George Bush ran for the
13 presidency, he didn't say, "Huh, as President, I'm
14 going to overturn that Clean Water Act, and that
15 Clean Air Act" Down the toilet it goes; Americans
16 with disability, senior citizen statutes, "I'll
17 have nothing to do with it." He didn't say any of
18 that, and of course, he couldn't say any of that.
19 He wouldn't have gotten many votes.
20 But what he's done is more insidious,
21 it's more cynical, it's more underhanded. That is
22 he has appointed nominees who will ever so quietly, 39
1 once they're confirmed to be judges, they will
2 interpret those laws, those wonderful
3 accomplishments and achievements in such a way as
4 to overturn them. And therefore, this strategy
5 doesn't get half the amount of the attention it
6 deserves to get because people are focused, as they
7 should be, on environmental laws and consumer laws
8 and worker safety laws. But the fact is, in
9 appointing judges like Jeffrey Sutton, like Deborah
10 Cook, like Carolyn Kuhl and like Miguel Estrada,
11 you are engaging in a very secret program to
12 overturn the very enactments that people have spent
13 so long trying to get Congress to adopt.
14 AUDIENCE PARTICIPANT: I have a quick
15 question about the nomination of Jeffrey Sutton.
16 In law school, law students are taught that
17 everyone deserves competent legal representation,
18 whether it be an accused rapist or a death row
19 inmate or whoever. My question, I guess, is, when
20 considering the judicial nominee, should we
21 consider arguments they make on behalf of their
22 clients, and should we equate those arguments on 40
1 behalf of clients as their personal views?
2 MR. GRAY: A lawyer's duty is to
3 represent his client. A lawyer, of course, in most
4 cases has the opportunity to decline to take on a
5 client. Certainly, I have. So, to some extent,
6 you can take those arguments into account. And of
7 course, in terms of an individual's own commitment
8 to the rule of law, you can see over the long haul
9 of a person's private practice, has he done pro
10 bono cases. Jeffrey Sutton certainly has done more
11 than his fair share, and I think has taken
12 unnecessary hits for his supposed views on the
13 Americans with Disabilities Act, when he has
14 personally defended several alleged victims of
15 discrimination, and sought their vindication
16 through the ADA itself.
17 MS. ARON: Well, I think the case of
18 Jeffrey Sutton is a very interesting one because
19 with Jeffrey Sutton, it's not simply a question of
20 one or two cases that he handled on a pro bono
21 basis.
22 Jeffrey Sutton, a lawyer at Jones Day in 41
1 Cincinnati, Ohio, has been the architect of a
2 theory -- not just a mere player or a lawyer taking
3 on a case on occasion -- he's been the leading
4 voice, an architect of a theory known as
5 federalism, which asserts that congressional
6 enactments, laws that Congress passed, shouldn't be
7 upheld by courts as they apply to women who are
8 victims of domestic violence, as they're applied to
9 environmental plaintiffs, as they're applied in the
10 case I mentioned to persons with disabilities.
11 He attempted at his hearing to disavow
12 his participation in this movement known as the
13 federalism movement. But in fact, he was
14 interviewed in a newspaper a year or two ago as
15 saying, in fact, that he embraces the notion of
16 federalism. Well, if played out, all the laws --
17 the enactments passed by Congress -- in Jeffrey
18 Sutton's world, would have no place in American
19 society whatsoever. And he has argued case after
20 case in the Supreme Court. He has written briefs.
21 He has spoken at conferences, putting forth the
22 view that Congress has no authority or power to be 42
1 enacting such important laws.
2 I think Jeffrey Sutton is not the kind of
3 person we want on the 6th Circuit Court of Appeals,
4 who's going to decide our rights and protections
5 under hundreds of statutes that have been passed.
6 MR. LEO: Yes.
7 AUDIENCE PARTICIPANT: Since we're on
8 Jeffrey Sutton, the ADA cases that he argued were
9 based on 11th Amendment jurisprudence. And I guess
10 basically my question is, then, do you think the
11 11th Amendment is dangerous?
12 MS. ARON: No, I certainly don't. But
13 his views are also based on the Commerce Clause.
14 But I certainly don't think the 11th Amendment is
15 dangerous. I think his views spring much more from
16 a desire to strategize a way to overturn important
17 congressional enactments, and the 11th Amendment
18 has been found by Jeffrey Sutton and his cohorts as
19 a convenient method for doing so.
20 MR. GRAY: Let me make a point, I think,
21 of clarification about the Americans with
22 Disabilities Act. The implications from the 43
1 questions and answers here are that he's somehow
2 gutted the ADA and said that people can't recover,
3 people can't sue, people can't get reimbursed,
4 people can't get the jobs that they were denied.
5 That's not what the principal ADA case
6 actually involved. What it involved was not
7 whether anyone could sue for discrimination against
8 most employers. The question was, could a disabled
9 person sue for damages against a state as the
10 employer? What he argued, and won, was that they
11 could get reinstatement or the could get their job
12 back or they could get the job, but what they
13 couldn't get from the state were damages. And I
14 think it's more than a footnote that the Americans
15 with Disabilities Act itself contained no provision
16 for damages. Back pay; get the job that you were
17 denied in the first instance; but the damages part
18 was added later by the Civil Rights Act of 1991.
19 That's, I think, more than just a simple footnote.
20 MR. LEO: Over here.
21 AUDIENCE PARTICIPANT: Again, regarding
22 Mr. Sutton. It's been said here today that 44
1 ideology doesn't matter and shouldn't matter. And
2 the question to both panelists is why do you think
3 so much energy was put into Mr. Sutton's testimony
4 and his supporters' statements to deny his history?
5 Again, it is common knowledge in Washington, and
6 certainly common knowledge in the Federalist
7 Society, being that Mr. Sutton is an active officer
8 of the Federalist Society, that he's a states'
9 rights leader. Yet, the drumbeat has been that
10 he's just representing clients.
11 In fact, it's in his personal writings
12 where he has proven himself to be an ideologue,
13 proven himself to be against federal protections
14 not only for disability but for women, for the
15 aged, and many other average Americans. My
16 question is, with this whitewashing, with this
17 denial of his activism, when does it become an
18 issue of character? When does it become an issue
19 of judicial temperament, when so much energy is put
20 into denying one's past?
21 MS. ARON: I think we saw a little bit of
22 that during the 1987 hearing of Robert Bork, who 45
1 was up for a seat on the Supreme Court. Here was
2 an individual who had a huge amount of writings and
3 speeches. He had been the proud promoter of views
4 such as state's rights, the doctrine of original
5 intent. And all of a sudden, he appeared before
6 the Senate Judiciary Committee and, each day of his
7 hearing, seemed to run away from that record more
8 and more. Well, I think that's a very convenient
9 tactic taken by nominees for federal judgeships.
10 They do one of two things. Those are
11 people who do have very large records. One is,
12 they change and begin to tell a very different
13 story of what they've been doing. I think that's
14 very much the case of Jeffrey Sutton. Or, in the
15 case of Miguel Estrada, you simply don't say
16 anything at all, and you hope, with every last
17 breath you have, that the Senate will give you a
18 pass, no matter what.
19 And so, I think we see two strategies
20 being played out before this committee right before
21 our very eyes. Again, I go back to the role of the
22 Senate. That is, these Senators don't want to say 46
1 no. Some of them couldn't be bothered. They don't
2 want to have to look at this person's record. They
3 don't want to have to be bothered talking to these
4 people or meeting with those people or reading
5 through hundreds of decisions or law review
6 articles. But the fact is, our Constitution
7 requires these Senators to do that. And these
8 Senators, at least all but one of the Democrats on
9 the Senate Judiciary Committee, said to Jeffrey
10 Sutton, "I don't believe you. I don't believe your
11 changed story and your changed circumstance. You
12 don't get a passing grade from me." And I'm hoping
13 that when the full Senate considers his nomination,
14 they will reach that very same conclusion.
15 MR. GRAY: I hope the full Senate does
16 vote. I hope it's an up or down vote of the full
17 Senate, and not a filibuster, that determines his
18 nomination.
19 MR. LEO: Yes.
20 AUDIENCE PARTICIPANT: I think it's
21 possible that many Americans find the whole notion
22 of politics either in the Senate or in the White 47
1 House side, abhorrent to the selection of judges.
2 Maybe they're naive. But I think many people find
3 all of this, the ideological screening that goes
4 on, contemptible in a pretty important way. And by
5 the way, this seems relatively new. It's not a
6 controversy that used to go on, at least,
7 throughout American history. Is there a way for
8 people of good faith and good intentions to work
9 together to come up with a process for selection
10 and confirmation of judges that is less politically
11 influenced and less contentious, without
12 undermining the powers of either the President or
13 the Senate under the Constitution? Is there a way
14 to find a way out of this morass, where there's
15 less obvious political influence?
16 MR. LEO: Boyden.
17 MR. GRAY: As I said in my opening
18 remarks, I think what we're in now is just a whole
19 new escalation, a whole different ballgame. You
20 can't take politics out of it. The President's
21 going to do what the President's going to do, and I
22 do believe the full Senate will do what the full 48
1 Senate will do, and you'll never be able to figure
2 out exactly why or explain exactly why. Historians
3 will argue, journalists will argue, politicians
4 will argue, why a Senate vote went the way it did.
5 What's happening here, though, is now the
6 use of a filibuster, and that's a brand-new
7 ballgame. I just don't think that's correct. It's
8 based on perceptions about ideology, which I think
9 are very, very illegitimate to begin with, but
10 never very reliable in the long run in any event.
11 The Constitution provides that the President has
12 the call in who he nominates. If the full Senate
13 wants to reject, that is the full Senate's
14 prerogative. But let's see what happens with the
15 full Senate.
16 There are so many tails, of course, of
17 politics in the selection process, I just don't
18 think you're going to find some way of saying, all
19 right, let's have a joint Presidential/
20 Congressional commission to come up with
21 recommendations for judges. I just don't think
22 anything like that would ever work. But I think 49
1 the system has worked for 200-plus years, with
2 presidents making the basic call and when they've
3 nominated people who cause difficulty beyond the
4 public's ultimate willingness to accept, there were
5 in fact rejections. But they've been very, very
6 infrequent, and I hope that this process that we're
7 now embarked on is not pursued.
8 MS. ARON: I think I pretty much agree
9 with Boyden on that. When you look over history,
10 one out of every five nominees to the Supreme Court
11 didn't make it. In fact, George Washington's own
12 nominee, the first nominee to the Supreme Court,
13 didn't make it because of a bad vote he had cast on
14 the Jay Treaty. But having said that, I think, in
15 fact, the Constitution creates a framework by which
16 there will at least be two parts of government that
17 have some say in this.
18 But having said that, when you look back
19 on the Clinton Administration and the eight years
20 of its judicial selection, this was an
21 administration that charted a pretty centrist
22 course for its judges. Time and time again, you 50
1 never saw a nominee to any court -- any nominee --
2 that didn't have the explicit endorsement of Orrin
3 Hatch. And sometimes we didn't like the fact that
4 President Clinton was checking with Orrin Hatch on
5 all of his nominees. Nevertheless, no one was ever
6 sent to the Committee who didn't have his
7 endorsement -- some endorsement; a tacit
8 endorsement, even.
9 I should just add that, even then, with
10 his okay, look at the pummeling that Clinton's
11 nominees took from the Republicans for those eight
12 years. I mean, you talk about Estrada, oh, my
13 goodness, his story doesn't begin to compare to
14 stories of some of Clinton's nominees.
15 Richard Paez, up for a seat on the 9th
16 Circuit Court of Appeals. He waited longer than
17 any other nominee in modern history to be elevated
18 to the 9th Circuit. Four years it took him to move
19 from the district court to the court of appeals.
20 And he's just one of several nominees who simply
21 didn't move.
22 I would say the Republicans didn't even 51
1 need a filibuster for the eight years of the
2 Clinton Administration because they blocked so many
3 judges, they wouldn't give nominees hearings before
4 the Senate Judiciary Committee. John Ashcroft, our
5 current Attorney General, was the guy of anonymous
6 holds for eight years. Oftentimes there would be a
7 nominee and there's be a hold placed on that
8 nominee, and you never knew who put that hold on.
9 You knew, after a while, it was John Ashcroft. And
10 remember, these were nominees who were sent out by
11 an administration that had already gotten the okay
12 from some of the Republicans.
13 So, we're not even talking filibusters
14 during Clinton because many of these qualified
15 candidates never even made it out of committee.
16 That's the sadness of this whole thing. And of
17 course a filibuster is necessary right now. The
18 filibuster is the only way in the United States
19 Senate to say no to a majority. And in a case of
20 such importance, like a federal judgeship, you want
21 these Senators to employ a filibuster. It's the
22 only way they have to express their view. 52
1 MR. LEO: I thought the previous question
2 was interesting. It brings to mind something I was
3 going to mention earlier. This is a somewhat
4 recent phenomenon, relatively speaking. With
5 increasing frequency, we see more acrimonious
6 exchanges in the Senate on judicial nominees. I
7 wonder to what extent that is a function of either
8 the role that courts now play in society or what
9 various political constituencies expect of the
10 courts. The charitable view would be, that, we
11 have a lot more federal law, and so judges need to
12 be more involved. And the less charitable view
13 would be that political liberals can't get what
14 they want from the political institutions, so they
15 go to the courts.
16 But it seems to me that however you want
17 to slice it or characterize it, the stakes, to
18 many, just maybe seem higher today, and maybe
19 that's contributing to the intensity with which
20 people are focusing on the courts. I'm curious
21 whether in the battlefield you sense that.
22 MR. GRAY: Let me take a stab at that. I 53
1 do believe that the left of center views the courts
2 as an avenue to get things that they can't get
3 through the legislature. To me, the best example
4 is tort liability, which has now become a form of
5 regulation by litigation, which even has the
6 Washington Post nervous, because a lot of these
7 regulations are occurring outside their service
8 area, as it were, and are not subject to as much
9 scrutiny and influence as they would like to have.
10 They can have it over a jury in the District but
11 not over a jury in Dubuque, not being a national
12 newspaper.
13 But all kidding aside, the role of the
14 trial lawyer and trial money in this whole process
15 has become a little bit puzzling. What happened at
16 the federal level is, over the course of time, with
17 12 years of Reagan and Bush judges, the appellate
18 judiciary has tightened up considerably on the
19 application and operation of Rule 23, which is the
20 class action rule that permits the amassing of
21 these huge mass tort claims against defendants,
22 which cannot be defended because the risks of 54
1 defense are too great.
2 That is an area where I think trial
3 lawyers would love to see more accommodating judges
4 appointed to the federal judiciary. And that is an
5 example of where the fight over what is really a
6 legislative prerogative is being fought out in the
7 judiciary, and we ought to be very, very careful
8 about that.
9 MR. LEO: Nan, I'm also curious about
10 your thoughts on this.
11 MS. ARON: I'm not sure I've ever known
12 any time recently where the American Trial Lawyers
13 Association has ever weighed in on a nomination.
14 But I do think, and I would agree with you, that
15 the issue has received a lot more public attention
16 and scrutiny over the past two years.
17 When George Bush came into office, he did
18 something that we didn't see much of during the
19 Clinton Administration. And that is, almost right
20 from the beginning, he set out to make judgeships
21 an important part of his overall agenda. He
22 assembled a small group of lawyers, mostly from 55
1 this organization, the Federalist Society, brought
2 them into the White House, and he quickly scheduled
3 a series of interviews with nominees. In fact,
4 press reports at the time were that the nominees
5 were coming in during the day, during the night,
6 round the clock, so that this Administration could
7 really hit the ground running on implementing its
8 judicial selection program.
9 The other thing this Administration did,
10 which was really unheard of and quite radical, is
11 it basically threw the American Bar Association out
12 of the process. I love to hear Orrin Hatch refer to
13 ABA ratings as the gold standard. These are the
14 very ratings that Orrin Hatch and some of his
15 colleagues ran from. "The ABA is a terrible
16 organization." And now, of course, they tout those
17 ratings as the gold standard.
18 But what Bush did was exclude the
19 American Bar Association and marginalize its role,
20 so that the name given to the American Bar
21 Association is not given to the ABA before the
22 nomination is made so that lawyers could really 56
1 weigh in on the process. The name is sent to the
2 ABA after the nomination is made. And therefore,
3 it's of very little value, and the lawyers who are
4 called by the ABA have very little inducement to
5 give any view at all.
6 So, this President came in, excluded the
7 American Bar Association, assembled its team, and
8 then held a press conference at the White House, at
9 which it very proudly and publicly paraded its
10 nominees before the camera. I think this upped the
11 ante. And of course, the nominees that appeared at
12 the White House were the Jeffrey Suttons, were the
13 Carolyn Kuhls, were people who stood for the
14 hostility that this Administration feels towards
15 environmental, consumer, and civil rights laws and
16 constituents.
17 So, in fact, it has been a very, very
18 public issue right from the beginning for this
19 Administration. And of course, it will become even
20 more public, and even greater scrutiny once there
21 is a vacancy from the Supreme Court. Then I think
22 everyone knows what this game is about, and what 57
1 hopes this Administration has to achieve in picking
2 a likely justice on the Supreme Court.
3 MR. LEO: Question. Right up front.
4 AUDIENCE PARTICIPANT: This question is
5 for Boyden. I wonder if you can tell me your
6 reaction to Republicans accusing Democrats of being
7 racist with the Miguel Estrada nomination,
8 especially in light of all the "I'm a really
9 qualified Clinton nominee that never got a
10 hearing," such as Jorge Renhow and Enrique Moreno.
11 MR. GRAY: I'm not familiar with those
12 earlier nominations. As far as I know, I think
13 President Clinton got 11 Hispanics to the bench,
14 which is the highest of any administration up until
15 then. In Bush 41, we had a lot of potential
16 nominees that we wanted to pursue but they were
17 just a bit too young. Now, of course, they're of a
18 good age.
19 I don't know what's going on with
20 Estrada. The scuttlebutt is he's being opposed now
21 because the Democrats are nervous that it would be
22 very hard to defeat him in a Supreme Court 58
1 nomination context because he is Hispanic. So,
2 they try to deny him that validation that he would
3 get by going on the court of appeals. I think
4 that's kind of targeting, in a sense, because he is
5 Hispanic. While I can understand the motivation
6 for it, I just think it's wrong and I think the
7 full Senate will not uphold that theory, if allowed
8 to vote.
9 MS. ARON: Well, I guess I would say that
10 there have been many, many in Congress and the
11 Senate Judiciary Committee who have charged that
12 the Democrats are anti-Latino by engaging in this
13 filibuster. And I think such a charge couldn't be
14 farther from the truth. His race has nothing to do
15 with his qualifications.
16 Where were these Senators, where was the
17 Committee for Justice, when Enrique Moreno and
18 Jorge Ronhow were not given hearings? Two
19 individuals who had bipartisan support, considered
20 for the 5th Circuit, never even given a hearing by
21 the Senate Judiciary Committee. Where were these
22 Senators when Sonya Sotomayer, originally a Bush 59
1 nominee to a district court, seeking elevation to
2 the 2d Circuit -- where were they when she had to
3 wait 15 months for her elevation? Where were these
4 senators? Where is Orrin Hatch, who has made this
5 outrageous allegation, when Christine Arguello, up
6 for a seat on the 10th Circuit, never ever got a
7 hearing? And that's a mere handful of the people
8 of color who were simply put aside and blocked from
9 ever getting judgeships during the Clinton
10 Administration. Where were all these people who
11 now charge the Democrats of being anti-Latino?
12 MR. LEO: Yes, right there.
13 AUDIENCE PARTICIPANT: Ms. Aron, you
14 seem to rely on the confirmation process to
15 accomplish what Congress can do through other
16 means. For example, if Congress wants to protect
17 individuals, they can expand federal court
18 jurisdiction, create new federal causes of action,
19 and if they don't like the way a judge is behaving,
20 they can simply impeach him. Is this not evidence
21 of weak political will?
22 MS. ARON: I can't think of -- I guess I 60
1 can. I can think of the last time a judge was
2 impeached, but it's more than ten years ago. And
3 these are for high crimes and misdemeanors. It's
4 almost impossible to impeach a federal judge for
5 the commission of a high crime and misdemeanor.
6 And what I always found quite amusing was
7 statements by people like Tom Delay in the House.
8 Any time a judge issued a ruling with which he
9 disagreed, the Delay would be right on the floor of
10 the House saying "impeach that judge". It's not
11 done, and it shouldn't be done unless there's a
12 real valid reason for that to occur.
13 Congress isn't about to expand in large
14 causes of action. You know that; I know that.
15 This is not a Congress that necessarily, at least
16 with a majority party, sees its role as expanding
17 its capacity to meet the needs of the people of
18 this nation. And neither house sees this role as
19 its role. Therefore, I think that that notion
20 would simply fail, given the current makeup in
21 leadership in both the House and Senate today.
22 MR. GRAY: I hope you're not suggesting 61
1 that because the majority party, in your view,
2 won't expand rights, the court should do it?
3 MS. ARON: No. But I say that the courts
4 are there to interpret those rights and interpret
5 those statutes. And certainly, you want to have
6 courts that do it in a way that respect and respond
7 to what Congress is doing, not simply overrule what
8 it's done.
9 MR. LEO: Final question.
10 AUDIENCE PARTICIPANT: This question is
11 for Mr. Gray. I just wanted to know, although the
12 Constitution doesn't seem to distinguish between
13 the two, should appeals court judges be subject to
14 the same scrutiny and judged by the same standards
15 as judges who are nominees for the Supreme Court?
16 MR. GRAY: My own personal view is, not
17 having checked my answer with Leonard -- no, my own
18 personal view is that there is a difference. An
19 appellate judge is bound by Supreme Court
20 precedent, and therefore can't change it. And
21 therefore, you can probably defer more to a
22 president in that case. A Supreme Court nominee is 62
1 different because a Supreme Court nominee has the
2 capacity to affect more law. But whether or not I
3 would agree with that is irrelevant. That, in
4 fact, is the case. In fact, Supreme Court nominees
5 do get closer consideration, and that's inevitable
6 and probably unavoidable.
7 To bring it back to the case of Estrada,
8 the irony is that the Democrats feel that once he
9 got seasoning on any court, but certainly the D.C.
10 Circuit would be an adequate court, it's almost
11 like the AAA farm team, that you couldn't defeat
12 him. If he were in the full glare of a public
13 examination of the kind that normally accompanies
14 the Supreme Court nomination, he would get
15 confirmed and you couldn't stop him, so you've got
16 to stop him now when no one's looking.
17 It's like one of the people yesterday at
18 a press conference we had said: that, for the run-
19 of-the-mill appellate nominees, certainly for a
20 district court nominee, for most of the public, an
21 appellate court's no different than a tennis court.
22 I that's overstating it, but there's a certain 63
1 amount of truth in that. Now, the Supreme Court's
2 different. The Supreme Court is definitely
3 different, but that is the irony here. If Estrada
4 were being nominated for the Supreme Court, the
5 irony is that he'd probably be confirmed far more
6 quickly.
7 MS. ARON: Just let the record reflect
8 that was someone at his press conference, not our
9 press conference. But if I could, I certainly
10 think working people know the federal courts. I
11 think citizen groups who care about the environment
12 and our consumer laws, they certainly know what a
13 federal court is. Persons with disabilities,
14 senior citizens, young people -- they certainly
15 have needed the forum of the federal courts.
16 Having said that, let me just say that I
17 certainly hope that the two years of debates that
18 we've had over appellate court nominations has
19 served to educate all of us to the need to give
20 appellate court nominees the same scrutiny as we
21 would a Supreme Court nominee. After all, the
22 Supreme Court used to hand down about 150 decisions 64
1 a year. Now, the court hands down about 74 or 75.
2 And, if you look at the current makeup of the
3 Supreme Court, you'll notice that almost all -- I
4 think it's seven of the current justices -- came
5 from the courts of appeals. So, given the fact
6 that these judges are really making the law of the
7 land in so many important aspects, I think it's
8 incumbent to apply the same very stringent
9 standards to them as the Senate would apply to a
10 Supreme Court nominee, and I'm glad to see that
11 many of the Senators both on the Committee and the
12 Senate, I think, appreciate the role that they are
13 being called upon to play.
14 MR. LEO: Those of you who follow
15 "Happenings" here in Washington know that the
16 confirmation battle over Miguel Estrada has been
17 quite pitched and emotional, and I think it's a
18 real credit to our speakers here today, and to our
19 audience, that we were able to have a serious and
20 civil exchange about not just that particular
21 nomination but also the proper role of the Senate
22 in the confirmations process. 65
1 Please join me in thanking our speakers.
2 (The panel was concluded.)