Estrada and the Future of the Judiciary; Throwing Stones before Knowing All the Facts

Article excerpt

Byline: Nat Hentoff, THE WASHINGTON TIMES

Whatever the future of the president's nomination of Miguel Estrada to the District of Columbia Court of Appeals, Sen. Charles Schumer, New York Democrat - who has been leading the campaign to prevent the nomination from being voted on by the entire Senate was without a filibuste - recently preening on television as an expert on the Constitution. He declared that he has taken the trouble to read the Federalist Papers.

But, in No. 76 of that guide to the framers' intentions, Alexander Hamilton plainly stated that the president is "bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature." In case the fulsome Mr. Schumer missed that page, Hamilton, in No. 77, said again, just as clearly, that "each nomination" must be submitted to "an entire branch of the legislature."

However, the passion Mr. Schumer and his bristling Judiciary Committee allies, such as Sen. Richard Durbin, Illinois Democrat, have displayed, has nothing to do with historical research. They are pursuing a grand Democratic plan to so frustrate the president that he will henceforth send up only nominees that will appease the committee's lockstep Democrats, along with the law professors who have been advising them on how to rig the confirmation process.

I would greatly prefer seeing George W. Bush appoint to the circuit courts and Supreme Court modern-day equivalents of Louis Brandeis and William O. Douglas than seeing the preponderance of alumni of the Federalist Society. Those who fear more Antonin Scalias on the federal bench seem oblivious to the fact that, when the White House and Congress are again in Democratic hands, minority Republicans on the Senate Judiciary Committee - pointing to the present full-scale obstructionist precedent - will apply the same scorched-earth tactics.

With regard to the ostensible principal charge against Mr. Estrada, that he did not answer all the Democratic senators' questions to their satisfaction, I recommend to historian Schumer what President Abraham Lincoln said when Salmon P. Chase - an opponent of Lincoln for the 1860 Republican nomination - was nominated by Lincoln as chief justice of the Supreme Court:

"We cannot ask a man what he will do (on the court), and if we should, and he should answer us, we should despise him for it." The Senate as a whole confirmed Chase.

Regarding the Democrats bastinadoing of Mr. Estrada, Washington Post editorial writer Benjamin Wittes - who should have his own column on legal issues in that paper - wrote of Mr. …