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The Right’s Supreme Court Acquiescence

If Democrats block nominees on ideological grounds and Republicans rely on traditional credentials, we will wind up with a court of well-credentialed liberals.

12:00 AM, May 16, 2010 • By JIM PREVOR
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Miguel Estrada is a highly esteemed conservative lawyer whose nomination to serve as a judge on the Court of Appeals for the District of Columbia by President George W. Bush was stymied by the Democrats. In no small part, Democrats made this effort because they feared that allowing an intelligent, conservative Hispanic to get experience on the Court of Appeals would make him an appealing candidate for a future Supreme Court opening.

Estrada has written a letter urging the quick confirmation of Elena Kagan, President Obama’s nominee for the Supreme Court, to fill the seat currently held by Justice John Paul Stevens.

The letter certainly takes the high road, ignoring all the vitriol directed against Estrada, when, for example, then-Senator Kennedy proclaimed Estrada’s ultimate withdrawal from consideration “a victory for the constitution.”

Instead, Estrada appeals to more conventional credentials:

Elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree with others without being disagreeable. She is calm under fire and mature and deliberate in her judgments. Elena would also bring to the Court a wealth of experience at the highest levels of our government and of academia, including teaching at the University of Chicago, serving as the Dean of the Harvard Law school and experience at the White House and as the current Solicitor General of the United States. If such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.

Estrada specifically disavows ideology -- at least within the “mainstream” of current legal thought -- as a legitimate basis for voting against a Supreme Court nominee:

…I should make clear that I believe her views on the subjects that are relevant to her pending nomination…are as firmly center-left as my own are center-right.”

And Estrada defends the right of a president to nominate judges he is ideologically in affinity with:

One of the prerogatives of the President under our Constitution is to nominate high federal officers, including judges, who share his (or her) governing philosophies.

Although one can understand Estrada’s personal desire to be magnanimous in defeat, his letter is ill-advised.

From a purely tactical stand-point, the implications of what Estrada is saying are obvious: If the Democrats block nominees on ideological grounds -- as they did with Estrada -- and the Republicans rely on traditional credentials, eschewing ideology, we will wind up with a court of well-credentialed liberals.

The bigger issue, though, is that Estrada’s letter implies that the Democrats are right -- that the issue is substantive -- whether we nominate someone with a “center-right” or “center-left” ideology.

Contrast this with Antonin Scalia and his critique of the idea of the “Living Constitution” and the threat that concept poses to our country and our Constitution. He made this point at an address to the Woodrow Wilson International Center for scholars in 2005:

The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed.

Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.

And that is why you hear in the discourse on this subject, people talking about moderate… we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.

I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean.

The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

This is the point: If a justice’s personal views matter, then both conservatives and liberals have no choice but to man the barricades against those they disagree with. If senators were convinced that justices, whatever their ideology or personal views, would “read a text and give it fair meaning,” then they could with good conscience vote for Elena Kagan. However, since being “center-left” today means that justices ought to focus not on giving the text a “fair reading,” in fact not focus on the text at all, but, instead, as Obama said in nominating Kagan, focus on "law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people…”

Miguel Estrada became something of a conservative hero as he endured the abuse of the left during his nomination process for the Appeals Court. There may be reasons for Republicans not to go to the mat on Kagan -- the next nominee may be worse, the Republicans may not hold their 41 votes, it may distract from issues such as the economy, etc. -- but there is no heroism in simply surrendering the Supreme Court to the left, which is the practical implication of Miguel Estrada’s letter. 

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