Jewish World Review Feb. 24, 2003 / 22 Adar I 5763

Paul Greenberg

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Consumer Reports

The mob forms here: The borking of Miguel Estrada | Both of my U.S. senators -- Blanche Lincoln and Mark Pryor -- have joined the line of rock-chunkers waiting to ambush the nomination of an exceptionally bright, industrious, intelligent and well-qualified nominee for an appellate judgeship.

The nominee is Miguel Estrada -- teenage immigrant, then graduate magna cum laude of both Columbia University and Harvard Law School, vigorous prosecutor and constitutional scholar.

So what's not to like? Senators Lincoln and Pryor won't say what they've got against Senor Estrada, only that he won't provide the information they need to use against him. For example, confidential memos he wrote when he was with the Justice Department.

One thing clear about Counselor Estrada, who's clearly wiser than his 42 years, is that he's smart -- too smart to be forced to incriminate himself. Or even to divulge what the lawyers call work product, that is, the counsel he gave his employer, the government of the United States, about appealing various cases or seeking writs of certiorari to review others.

It's true that one of Miguel Estrada's old bosses in the solicitor general's office -- clearly a lawyer of a different political bent -- called him a conservative ideologue. But that same boss also gave him the highest possible job evaluation: Outstanding. And 14 of his other colleagues there, lawyers of various political persuasions, endorsed his nomination, expressing their complete confidence that he would scrupulously follow the law and make "a fair and honest judge."

By now all seven living former solicitors general of the United States -- including good Democrats like Archibald Cox and Seth Waxman - have signed a letter pointing out how outrageous this request for confidential working papers is. "Any attempt to intrude into the office's highly privileged deliberations," they point out, "would come at the cost of the Solicitor General's ability" to defend the government's interests.

Yet the rock-chunkers in the Senate still demand the files. To call this kind of fishing expedition just an innocent request for more information is like describing Captain Ahab's voyage as just a li'l ol' pleasure trip.

Senator Lincoln was at pains to note that she would welcome an Hispanic nominee to the bench, but "I cannot support Mr. Estrada simply because he is Hispanic." Nobody's asking her to. Any more than this administration asked the Senate to confirm Colin Powell as secretary of state or Condoleezza Rice as the president's national security adviser because they were black.

Miguel Estrada is qualified for this seat on the court because of learning, experience, hard work and his great promise as a judge. And he would be just as qualified if his name were Kennedy, or Scalia.

Come to think, young Estrada served as a law clerk to Justice Anthony Kennedy at the Supreme Court, and it occurs to us that the most fervid opposition to his appointment may be based on the deep, dark fear that, with his intelligence and diligence, he could turn out to be the next Antonin Scalia. His specialty is constitutional law, and he's already argued 15 cases before the Supreme Court of the United States, 14 for the U.S. solicitor general and one pro bono. He's also been a federal prosecutor in New York, trying cases both before juries and on appeal to the Second Circuit. Qualified, he is.

It's not the nominee's lack of qualifications that strikes fear into the bitter hearts of lockstep libs, but that he is superbly qualified to be the next great conservative justice on the bench. If he were just mediocre, or the kind of lawyer who never risked controversy and sticks to safe platitudes, then Miguel Estrada might be a cinch for confirmation. There'd be nothing there for the opposition to fear. It's his politics, not his qualifications, that are suspect.

In theory, politics isn't supposed to have anything to do with a judicial nomination in this country -- when of course politics may have everything to do with it. Political ideas lie at the heart of every constitutional decision of the courts, but we like to pretend they're brought by the stork. So both sides are reduced to pretending this debate over Miguel Estrada is about qualifications or information or ethnicity or anything but politics.

American politicians have been playing this game since the earliest days of the Republic, when John Adams, in the last hours of his presidency, snuck John Marshall onto the Supreme Court of the United States. Talk about nominating a conservative ideologue! But if Miguel Estrada turns out to be anything like John Marshall, he'll be not only an acceptable choice, but a great one. ĦArriba Estrada!

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