March 15, 2003
A BUZZFLASH INTERVIEW
The Democrats have finally shown some backbone in standing up to the Bush administration's fervent drive to stack the federal judiciary with right-wing appointments. On March 13th, the Republicans lost a second vote on Miguel Estrada, as the Democrats successfully continued their filibuster.
We are pleased to bring you our second interview with Martin Garbus, author of "Court Disaster: The Supreme Court and the Unmaking of American Law," as to why the Estrada filibuster is justified, and to give context to the right-wing take over of the federal courts.
Martin Garbus is one of the country's leading trial lawyers. A legal commentator for NBC and CBS, he has written for The New York Times, the Los Angeles Times, The Washington Post, and other publications. He is the author of three previous books and lives in New York City.
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BUZZFLASH: Do you think that the Democrats are justified in organizing a filibuster against Miguel Estrada, Bush's nominee to the U.S. Court of Appeals for the District of Columbia. (See: Article Link)
GARBUS: Yes, I do. I think that the Bush nominees are as conservative a group of nominees as we've seen in a very long time. I think you have to look at the Estrada nomination in the context of what's happened since 1980.
In 1980, Reagan was elected. The right wing of the Republican Party controlled judicial appointments. It was the ball the right wing would hold, if you will, in supporting the Republican Party, and in return not going out and putting up their own candidates. You may remember, at some time, Pat Robertson ran in the primaries for a brief while, and then he stopped running. So the Republicans are very much aware that they don't want somebody off to the right of them pulling votes away, especially since elections between the two major parties are so close.
After Reagan, you had Bush senior. He carried out the mandate of Reagan –- namely, to keep appointing younger judges, people without paper trails, and people who had a strong conservative ideological commitment.
Then you had Clinton. In the first year of Clinton's term, he was able to get through some nominations. You had a Democratic Congress and a Democratic Senate. In 1994, they lost the Senate, and then his presidency started to get into his problems with Lewinsky, and with Whitewater. So basically from 1994 to the year 2000 –- a six-year period -– very little was done. He made his appointments on the basis of gender and race, not on ideology at all. And Clinton appointed some very conservative judges, but he could say at the same time that he was appointing African-Americans, Hispanics and women.
And now we have Bush. In truth, there are twelve circuit courts. And if you look at the compositions of the circuit courts, you recognize that they're becoming increasingly conservative, increasingly right-wing, even to the right of the Republican Party. So I think the Democrats' filibuster of Estrada is appropriate.
In any event, what the Republicans are now doing is putting up a number of candidates at the same time, which means the Democrats can only fire on one candidate at a time. So one of the people who has been recently nominated is Jeffrey Sutton -- someone who would normally get a lot of fire and a lot of attack for his views but he slipped out of the Judiciary Committee unnoticed and will surely be approved. So basically the Republican strategy of putting in more and more, younger and younger conservative judges is working, even though, for now at least, Estrada has been defeated.
BUZZFLASH: One of the reasons that the Democrats organized the filibuster is that they know Estrada is a right-wing ideologue and a member of the Federalist Society. But what they don't know, and what Mr. Estrada refused to provide, is any indication of what his views about Supreme Court decisions might be. He essentially has no written record that he will reveal. He hasn't clarified any views during his Senate Judiciary hearings. Paul Bender, who is currently a law professor and was a former Deputy Solicitor General and colleague of Mr. Estrada said in the New York Times that he "could not count on Estrada's written work as a neutral statement of the law."
GARBUS: Well, I think the Democrats pretty much know what they're getting with Estrada because he has been appointed by Bush, and because he doesn't have a paper trail. They pretty much know that they're getting someone who is going to be anti-abortion and be anti-affirmative action.
Bush has already described the kind of judges he wants on the Supreme Court. He says he wants justices in the mold of Scalia and Thomas. Now he's not even saying he wants justices in the mold of Rehnquist, who many people would consider very conservative. But in fact, Scalia and Thomas are to the right of Rehnquist.
The thing that must be remembered about federal circuit courts is they have enormous power and they become jumping-off places for nominations for the Supreme Court. Anthony Kennedy came from the circuit court. Many of the Supreme Court Justices came from the circuit courts. So once you put somebody in the circuit court, he or she immediately becomes a potential Supreme Court nominee. I presume in the D.C. Circuit, at some time, they'll try and name Alberto Gonzalez, the White House counsel. And he then becomes an immediate potential nominee for the United States Supreme Court. So we're talking about a lot more than just the circuit courts.
BUZZFLASH: Do you think Estrada is unique in his lack of available written history or lack of a paper trail (except for Estrada's working papers from his time at the Justice Department solicitor general's office, which the White House will not release) compared to past federal judiciary nominees?
GARBUS: No. Supreme Court Justice David Souter didn't have a paper trail, although he'd been a sitting judge. Anthony Kennedy had been a circuit court judge out in California, and his decisions were so carefully packaged that it was very difficult to get a sense of where he was on major issues.
I think you've put your hand on what is a very important question -– namely, how much should you know about these potential judges before they go on the federal bench? How much of a right do you have to know about what their positions are? And I think the question that goes before that is: what exactly is a seat on the Supreme Court? Is it a political seat? Is this a judicial seat? Is it a combination of both? Because if it's a political seat, then you're entitled to know more than if you look upon it purely as a judicial seat. And if it's a hybrid, which some people would say it is, then you get into the very difficult questions. Do you have a right to know how a judge today will vote on abortion or on affirmative action?
BUZZFLASH: That brings up a very good point in regards to Mr. Estrada. We should make this very clear that when you look at Mr. Estrada's credentials, that as a lawyer, he's certainly in one of the elite categories in the U.S. legal profession. No one is questioning that. Even the Senate Democrats aren't questioning that. But just because you're a highly qualified and skilled lawyer, that doesn't mean you should receive a lifetime appointment as a federal judge on that very powerful circuit court. The Republicans are disregarding that he's a member of the Federalist Society, and that he was a member of the Bush legal team that helped stop the recounting of votes in Florida in 2000.
GARBUS: I think you make a very good point. Rehnquist was number one in his class. Kennedy, I think, was number one in his class. Sandra Day O'Connor was number three in her class. Now if you look the way that they vote, I disagree with most of their voting patterns. I think they're far removed from the issues and from the people. Most judges have never held elective offices, as many former Justices did, such as Earl Warren or Hugo Black. I don't think that the criteria for becoming a federal judge should simply be to take the top students from law school, and put them on track to becoming a United States Supreme Court Justice. I think that you need a more worldly person. The best lawyers academically are frequently not the best of the people to be making these kind of decisions, which are very political, deal with human issues, and deal with what is a democracy.
BUZZFLASH: On the D.C. Circuit, there are four Republican appointees and four Democratic appointees, and four vacancies. The Senate Republicans blocked two of Clinton's nominees to the D.C. Circuit. Could you give us some background on those two nominations, and how and why they were blocked?
GARBUS: The two Clinton nominees were blocked because of politics –- they were Democratic nominees and they were shot down. The D.C. Circuit Court of Appeals is the most important court in the United States next to the United States Supreme Court. It adjudicates the cases that arise in Washington. It deals basically with most of the suits that relate to how agencies act, whether it is health, environmental, or welfare issues. It's where government agencies are basically attacked. There are more Constitutional issues decided, and bigger issues decided in the D.C. Court. Also, D.C. is a media center, so it gets a lot of media cases which go up. Also, the D.C. Circuit is where you generally get a lot of exposure in Washington, so you then become a likely nominee for the United States Supreme Court.
BUZZFLASH: One of the things that is really of concern with Estrada and some of the other nominees from Bush, is this precedent of refusing to share or explain judicial views, even if what's at stake is a lifetime appointment to the federal bench. It's the function of judges to issue opinions, and to articulate the law as they interpret it. Estrada is a prime example of someone who has blatantly refused to provide any indication of what his views would be, although again we could suspect how he would vote. Clarence Thomas is a great example. He actually testified in the Senate during his hearings that he had no personal opinion about Roe v. Wade, and refused to answer questions regarding the issue. We now know that was categorically untrue.
BUZZFLASH: Clarence Thomas wrote later on that he thought Roe vs. Wade was grievously wrong, and it was an illegitimate decision. He has voted against Roe at every opportunity. When Estrada was asked about Roe v. Wade, he responded -– and I'm quoting, that he "had not given enough thought to the question." Is this a pattern or history that judicial nominees don't directly respond to a Senator's questions about their judicial and legal views?
GARBUS: I think this is one of the effects of the Bork nomination, where he was seriously attacked because of a lot of the things he had said. Bork had a long written record and he tried to defend a lot of the positions he took. He questioned Brown versus the Board of Education. It was a media frenzy during the committee hearings.
The serious question one has to deal with is, whether it's Bork or a Democratic nominee, what right does the Senate have to ask questions? What should a potential judge be required to answer? Now it seems to me that if you're appointing judges as were appointed years ago by both parties -– the Holmses, the Brandeises, the Blacks, the Frank Murphys –- it seems to me that you had a right to ask questions so the people would know more or less where nominees stood on important issues.
One of the things you have in America, in some places like in Minnesota, is that judges run for office. And when they run for office, they state their positions. Now I'm not suggesting the Supreme Court run for office. But to some extent, that's exactly what happens. They do run for office. They run for office before the Senate. And the Senate has to decide. I don't think there's anything wrong with the Democrats getting the man they want, and the Republicans getting the man they want. I think it's part of the political battle.
What happens now though, as a result of all the events since 1980 that I discussed before, is you have a terribly, terribly skewed Court. What's going to happen in the D.C. Circuit is that at some point it will be eight conservative appointments to four. And that's a legacy of Bush's that is going to long outlast everything except maybe attacking Iraq. As you pointed out, these judges get appointments for life. When Ken Starr was appointed, he was 36 years old. Had he stayed in that job, he would have been on well into the next century. Clarence Thomas says he's going to stay on. If you look at averages and things like that, he would serve until about 2030. And Scalia would also stay into the first quarter of the 21st Century. So I think that when you're talking about judgeships, you're talking about very important things.
BUZZFLASH: The person leading the fight in Congress to approve Estrada is Orrin Hatch (R-UT), who is the ranking Senator on the Judiciary Committee. Hatch would have us believe that he treated Clinton appointees with fairness, and he accuses the Democrats of not giving the same respect and fairness to Estrada.
GARBUS: Hatch is very smart and very shrewd. He said that a vote against Estrada was a vote against Hispanics. And he successfully politicized the issue in an attempt to appeal to Hispanics.
BUZZFLASH: And we saw that happen with Clarence Thomas. Let's look at the numbers. There are 42 federal vacancies on the bench. Out of those 42, Bush has nominated one Hispanic, Miguel Estrada. When Clinton was President, he nominated eleven Hispanic judges, and the Republicans blocked three of those.
GARBUS: I think you're right. I come to this with a political view -– with Hatch being much more careless with the truth than the Democrats. I find that, by and large, the Republicans and the conservatives, certainly since 1980, recognize the hot button issues for their constituency, for the Evangelical right. Issues such as abortion, affirmative action, school integration, prayer in school -– those wins come through the legal system.
So I think what's happened is conservatives have concentrated now, intelligently, on putting right-wing judges on the federal bench. And the Democrats didn't get into the fight until much later. And still there are many Democrats who refuse to see the pure political nature of the court system. They like to think of it as something platonic, of something ideal, of something noble, something above politics. It's been said that "90% of the judge's decision is based on bias and preconceptions, and only 10% is based on the law." I think that the Senate is entitled to know something about that other 90%.
BUZZFLASH: What will it mean if the Democrats lose this battle -– if the filibuster fails and Estrada is confirmed to the D.C. Court of Appeals?
GARBUS: If the Democrats lose on defeating Estrada then I think the threat of the filibuster will become hollow. It's hard to say how this will play out in late March, or early April, given what's going on in Iraq, and that's going to change the political nature of everything.
BUZZFLASH: Many people are worried that the war will have an impact on the Democrats maintaining the filibuster. To fight a nominee to the D.C. Court of Appeals, even if it is Miguel Estrada, while troops "are in harms way" will be very difficult. But if the Democrats do prevail, if they can pull this off and defeat Estrada, what will that mean for Bush's other nominees such as Charles Pickering and Priscilla Owen?
GARBUS: Well, I think the problem is you can only filibuster so many times. And I think that they're going to have to pick their battles. I think you mentioned before Mitch O'Connell. I think at a different time, he would have been rejected. And not just for his views on abortion, but his views on church-state also. I think you could have had coalitions forming against him. But he got in. And he got in, by the way, with the support of some very liberal professors such as Larry Tribe from Yale and others who said, well, he's a great academic, and therefore, he should get through. I don't think that should be the criteria. There are certainly plenty of Bush's nominees to the federal bench who should be rejected.
BUZZFLASH: Mr. Garbus, thank you for your time.
GARBUS: Thank you.
A BUZZFLASH INTERVIEW
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Interview with Martin Garbus on BuzzFlash.com:
on Estrada and Other Bush Appointments to Federal Bench:
otherwise noted, all original