"IT'S NOT ENOUGH for you to say, 'I will follow the law, Senator.' We need to be convinced that nominees aren't far out of the mainstream," snarled Chuck Schumer, chairing last week's confirmation hearing for Miguel Estrada before the Senate Judiciary Committee. "Clarence Thomas came before this distinguished committee and said he had no views on important constitutional issues of the day. . . . But the minute [he] got to the Court, he was doctrinaire. He obviously had deeply held views that he shielded from the Committee. . . . And there's still a lot of simmering blood up here about that."

Simmering blood was about all that was up at the hearing for Estrada, President Bush's nominee to the U.S. Court of Appeals for the D.C. Circuit. Democrats spent much of the hearing trying to tarnish Estrada's credibility on the matter of whether he had tried to prevent Supreme Court Justice Anthony Kennedy from hiring liberal law clerks. Mainly, though, the majority used the occasion to urge Estrada to ask the Justice Department to release private decision memos he had written while working in the Clinton-era solicitor general's office--a demand instigated by his former superior, Paul Bender, who calls Estrada "too much of an ideologue to be an appellate judge." This is the same Paul Bender, however, who gave Estrada a glowing performance evaluation, laid out for the committee by Orrin Hatch: "States the operative facts and applicable law completely and persuasively . . . with concern for fairness, clarity, simplicity, and conciseness. . . . Is extremely knowledgeable. . . . Inspires co-workers by example."

The White House refused to release the Estrada memos back in June. But Schumer announced that he "would be reluctant" to hold a vote without them. Such writings have been released in the past, Schumer maintained, in cases where other materials were not available to show how a nominee would vote as a judge, and this was such a case.

Schumer proceeded to enter into the record memos written by Judge Frank Easterbrook when Easterbrook had worked in the solicitor general's office, claiming them as precedent. But a Justice Department official insists the memos must have been leaked. "Easterbrook's SG work product," the official said, "was not released by either the Justice Department or the nominee--it seems to have been an unauthorized disclosure by an unknown individual." The official denied that the department has provided the Senate any "sensitive, confidential legal recommendations" written by any individuals from the SG's office who are now sitting judges. And the memos produced by the department back in 1987 during the confirmation hearing for Robert Bork, a former solicitor general, were not of a deliberative nature. Furthermore, all of the living former solicitors general--from Archibald Cox to Seth Waxman--have concurred that the release of such candid information would harm the "unbridled, open exchange of ideas" required for "high-level decisionmaking."

Schumer wouldn't let go. "We're trying to figure out how you think here," he complained to the nominee at the end of the hearing. "You're not letting us get to know you. . . . I still want to see the SG memos."
Val:Y