Ask Auntie Pinko
March 6, 2003

Dear Auntie Pinko,

The Democratic members of the Senate are trying to block Miguel Estrada's appointment to a Federal judgeship with a filibuster right now. They say that he is a "stealth conservative," and that the fact that he refused to give opinions about issues that he might have to rule on as a judge makes him unfit to be appointed. I can understand that liberals want to have their own judges considered and not want any more conservatives appointed, but is this fair? Is this a good strategy? In my opinion it makes the Democrats look petty and obstructive. That's no way to advance their agenda on judicial appointments. What do you think?

Linda,
Reisterstown, MD

Dear Linda,

The whole issue of judicial selection, Constitutional apportionment of powers, maintaining some level of ideological balance, and achieving a quality judiciary makes Auntie's head spin! But I'm still glad you asked the question. It gives me a chance to sort out some of the many thoughts and observations spinning around in the muddle.

I think we have to come to terms with one clear fact:

Any judge or attorney who has had enough experience to qualify for the bench has necessarily accumulated some biases. If they haven't, they might turn out to be the kind of spineless jellyfish who are all but useless in making tough calls - and that's no qualification for a judge.

But how do they handle their biases? Are they self-aware? Do they make an effort to be objective? Do they have a record of allowing bias to lead them onto shaky legal ground? How often have they been reversed on appeal? How have they handled highly controversial matters, and what has the response been from their fellow-jurists, from legal scholars, and others who have a deep understanding and commitment to the law and Constitution?

The answers to these questions will always be interpreted in the light of the questioner's own bias. The liberal jurist who is frequently reversed by a higher court dominated by conservatives may look good to a liberal, and bad to a conservative. So this is only part of the answer.

I want judges who are going to interpret the law at higher levels to have some lower level experience with the issues they are likely to face. They should have a personal familiarity with cases that present the issues that particular higher level is likely to consider.

The challenge of law is to meet somewhat conflicting needs for both change, and consistency. Some aspects of law must change rarely, if ever - basic principles and backbones of a legal system founded on equity and transparency. On the other hand, some aspects of law must evolve, to meet the changing needs of the community.

If I were evaluating the nomination of a candidate, I would want to be able to see how the candidate has addressed those conflicting needs in their approach to the law. To me, the ability to balance that conflict would outweigh, to some extend, any ideological commitments I am devoted to advancing.

There is no doubt that some Democrats are opposing Mr. Estrada's confirmation primarily for ideological reasons, just as I have no doubt that some of the Republicans promoting him are ideologically motivated. But I'm also very sure that many of Mr. Estrada's opponents are genuinely troubled by the same lack of information that concerns me.

Without knowing how Mr. Estrada has previously approached some of the issues that are important to our national community, without information about his ability to balance the need for consistency in the law against the need for law to evolve, the Senate has only two choices about what to base their decision upon: blind trust in the Executive Branch's private selection criteria, or information provided by the nominee at confirmation hearings.

In that context, Auntie Pinko supports their attempt to block Mr. Estrada's appointment, even while I agree with you, Linda, that it might well damage an overall liberal ideological agenda.

We should keep things in perspective, however. The current uproar about the role of ideology in filling America's court benches may have reached a new pitch of stridency in the media, but there is nothing new about it. Making the Federal bench the ball in a highly competitive partisan football game is a venerable tradition, a practice as old as this nation.

Yes, there is currently a crisis of understaffing in our judiciary, and yes, it can be directly traced to the ferocity with which this particular part of the political game has been played over the last twenty years. But the crisis may offer hope, as well. It is clear to everyone that this is one section of the law that does need to evolve. The worse things get, the greater the incentive and pressure to prod the painfully slow, cumbersome machinery of major change into action.

Whew! A long and rambling answer, Linda, but it's a complex question. I hope you find it helpful, and thanks for asking Auntie Pinko!