hard heads soft hearts
Thursday, February 06, 2003
letter I sent to Senators Feinstein, Boxer, Dorgan, Conrad & Durbin in support of Filibustering Estrada:
I am a loyal Democrat, and I’m writing to tell you I feel quite strongly that the Democratic Senators must filibuster the Estrada nomination. He is no doubt ideologically conservative, and he has arrogantly , contemptously refused to answer questions about his judicial philosophy, but to me this is fundamentally a question of integrity and honesty. It is a question whether the Senate will appoint people who will be primarily judges, and secondarily Movement Conservatives, or people who will be primarily Movement Conservatives, and secondarily judges.
Fundamentally, it is a difference between Republicans like David Walker and John Danforth, and Republicans like John Bates and Laurence Silberman. Walker and Danforth are conservative Republicans, but they are more loyal to their core principles and values than they are to the "Conservative Movement". If you look at the judicial careers of judges like John Bates and Laurence Silberman and Pasco Bowman, there is no consistent principle except the principle of "looking out for me and mine".
Thus someone like John Bates, who as Independent Counsel wanted to look through Chelsea Clinton's underwear, now as Judge Bates endorses a ridiculously broad notion of Executive Privilege in the case of Dick Cheney's Energy Task Force. Does anybody doubt that if the lawsuit dealt with Al Gore's Energy Task Force, Judge Bates would have ruled differently? And how scary is it that we are now appointing people to the Federal Court who believe that there should be one rule of law for Democrats, and another rule of law for Republicans?
Fundamentally, the question is whether Miguel Estrada, and many others like him who are in the pipeline, when called upon to issue rulings, are the type of people who will ask the question "What is the meaning, spirit and letter of the law, and how should I apply that meaning, spirit and letter to these specific circumstances, whether or not I approve of the outcome in the narrow sense?", or are the type of people who will ask the question "What is the outcome that will serve me and mine the best, and can I cobble together a plausible legal argument that will justify my preferred outcome?"
Finally, a word about the partisan unpleasantness that will arise if you Democratic Senators filibuster. When the Republicans were riding high after the 1994 elections, they passed their budget by a party-line vote, and tried to bully and intimidate President Clinton into signing it. The budget contained substantial cuts in Medicare, but also unbelievably large cuts in Medicaid. President Clinton was put under enormous pressure to cut a deal with the Republicans, much like you Senators have been and are under pressure today. But ultimately, Clinton took a stand. When Dick Armey complained about Clinton "playing Mediscare" and "frightening his mother-in-law", Clinton replied "I don't know about your mother-in-law, but I do know that a lot of poor seniors will die if these Medicaid cuts are put into effect. I will never sign your Medicaid cuts! I don't care if my poll numbers go down to five percent! If you want to pass your budget, you're going to have put somebody else into this chair." And that, along with Clinton offering a constructive alternative to the Republican budget, was what started Bill Clinton's political comeback.
Sometimes compromise is the right thing to do. But at some point over these next two years, you Democratic Senators are going to have to stand up and say "I don't care what happens to my poll numbers! If you want to pass your legislation/get your judges/etc. you're going to have to put somebody else into this chair." I fervently believe that the nomination of Miguel Estrada, and of other nominees like him, is one place where you Senators must take a stand. I hope you do.