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Federalists on the Estrada Nomination

Letter to the Editors

By Murray Dry

To the editors:

The Crimson’s argument in support of the Senate Democrats’ filibuster of Miguel Estrada’s nomination to the D. C. Court of Appeals is ostensibly in the service of an open nomination process (“The Senate should never confirm a lifetime judicial nomination without first having an idea of that person’s interpretation of the law.”), but it is in fact political (Editorial, “Trashing Estrada,” Feb. 19). “If Estrada is confirmed, other staunch conservative candidates are likely to get through as well, helping President Bush in his efforts to pack courts with right wing ideologues.”

This judicial nomination conflict, the most recent since Judge Robert Bork’s nomination to the Supreme Court was defeated in 1987, reveals a tension in the American Constitution and in the way we think our government should work. On the one hand, our separation of powers provides us with a system of checks and balances, whereby “ambition must be made to counteract ambition,” and “the interest of the man must be connected with the constitutional rights of the place” (Federalist 51). On the other hand, the judiciary is different, and that is why article III of the Constitution provides for judges to enjoy good behavior tenure. Not only are they expected to interpret the law, not make it, but they must “unite the requisite integrity with the requisite knowledge” so as to be able to deal with complex cases and numerous precedents thoughtfully and fairly (Federalist 78).

The Crimson editorial staff, not yet lawyers, would point out what every law student knows, that the difference between lawmaking and lawfinding gets blurred at the edges. Hence, the editorial wants to know how Mr. Estrada interprets the law. That used to mean loosely or strictly, with reference to the powers of Congress. Now it often means, are you an activist in support of privacy-autonomy rights or property rights?

While life tenure reflects the distinctiveness of judging, in contrast to legislating or executing, the mode of appointing judges reveals a political connection. The framers deliberately vested the appointment power in the single President, giving the senate the power to advise and consent, i.e. to say no. This was said to combine the benefits of placing responsibility for the choice in one person with a check to “prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment or from a view to popularity” (Federalist 76).

My proposed reconciliation of this constitutional tension is to note the extraordinary qualifications of this candidate and to urge the Senate to confirm Mr. Estrada; actually, all the Democrats have to do is to allow the nomination to come to a vote. The Senate should assert its constitutional power against presidential nominations for judicial office, and arguably even with a filibuster, when the nominee does not possess the high qualifications for federal judicial office. Mr. Estrada’s record in the Solicitor General’s Office suggests that he is no ideologue. When high ability and good character are both present in a judicial appointment, the differences in the way judges interpret the law are likely to be reasonable and defensible. When a Democrat next wins the Presidency, let him, or her, follow the same high standard for judicial appointments that President Bush has with this nomination.

Murray Dry

Feb. 20, 2003

The writer is Charles A. Dana Professor of Political Science at Middlebury College and a visiting professor in the Department of Government this semester.

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