More on Estrada
My comments yesterday seem to have generated a bit of heat, as I've been criticized both by other bloggers and in a number of emails. The critics have raised a number of points, which, taken together, make me want to emphasize that my conclusion about Miguel Estrada's fitness for the federal bench is tentative; they do not, however, persuade me that I was necessarily wrong. I'll consider my critics' points in turn.
* I relied on an article in The Nation, a highly partisan and therefore dubious source. I'm generally not a big fan of The Nation, a publication with an editorial stance well to my left; I'll concede it's not the best possible source on which to rely. On the other hand, the quotes in The Nation either were drawn from other publications or have been independently confirmed. More to the point, those who have raised this criticism generally point to contrary evidence from highly partisan conservative sources. Just as you probably won't persuade a conservative with arguments drawn from The Nation, you are highly unlikely to persuade a non-conservative with references to publications like the Wall Street Journal editorial page and the National Review. My weakness, in other words, is shared by my critics.
* Paul Bender's current assessment of Estrada's fitness is inconsistent with his contemporaneous evaluations of Estrada's work. Two points here. First, when Bender wrote his evaluations of Estrada, he was not assessing Estrada's fitness to serve a lifetime appointment as appellate judge. It's entirely possible to think that someone is a fine subordinate attorney while simultaneously thinking that that person is ill-suited for the bench. Second, before I started teaching, my practice included a substantial component of employment law. It's quite common for supervisors—even intelligent, legally sophisticated supervisors—to refrain from placing negative comments in subordinates' employment files even if the supervisors have problems with the subordinates' performance. Bender's formal evaluations certainly have some tendency to undercut his current description of Estrada's fitness, but they don't necessarily invalidate it.
* Bender is an extreme partisan whose word should not be trusted. The sources for most of these evaluations are themselves highly partisan—the articles from the Wall Street Journal editorial page and the National Review cited above, for example. Lawyer-blogger Sam Heldman undertook his own investigation, discussing Bender with a friend who asserted "that Bender is the farthest thing from a partisan, that he is mild and scholarly and warm and honest and the kind of person who would not say such a thing unless it was perfectly true." I don't know Paul Bender personally, but it's clear that not everyone regards him as a relentless partisan.
* The word of two anonymous unsuccessful candidates for Supreme Court clerkships should not be trusted. The individuals in question have affirmed their statements when questioned by the Washington Post. And their stories strike me as eminently plausible, given experiences I had in my own (failed) efforts to obtain a Supreme Court clerkship (I should note that I had no dealings with either Estrada or Justice Kennedy in my own applications, and, since I've mentioned previously on this site that I interviewed with Justice Souter, I should also emphasize that I have no reason whatsoever to question his hiring process, even though he did not hire me).
* Estrada did not impose an ideological litmus test when he participated in the hiring process at the solicitor general's office. One of my correspondents interviewed with Estrada while she was applying for a position with the solicitor general's office; she relates that, though her liberal leanings were clear from her resume, Estrada supported her candidacy. Of course, we're talking about the Clinton administration's solicitor general's office. An effort by Estrada to prevent the hiring of liberals in that office would have been quixotic indeed.
I'll concede that the argument against Estrada is not the strongest argument that's appeared on this site. But there's a reason for that. Miguel Estrada is largely an unknown. He has a very limited public record, so it's hard to know what to make of him, and we wind up grasping at fragments and viewing them largely through the prism of our own hopes and fears. David Brooks of the Weekly Standard had an interesting comment on last night's All Things Considered. He was talking about Iraq, but I think the observation applies equally to the debate over the Estrada nomination. He said:
When we have a debate about [an] unknown, it brings out all our latent prejudices, which we then project onto that debate, and it's turned quite nasty in a week.
Democrats, suspecting (with some reason) a Republican effort to pack the courts with hard-right ideologues, and remembering all the games that the Republican Senate played with President Clinton's nominees, understandably view with some suspicion a nominee who seems to have been selected in part because he doesn't have an extensive record that can be subject to scrutiny. The aggressive partisan backlash to Democratic efforts to probe the nominee's record in light of the accusations that have been raised only serves to heighten those suspicions.
Update: Another critic heard from. William Sulik opines that I was having an off day and gently suggests that I should get out more. Sadly, between the job and the baby, that's unlikely.