Thursday, February 13, 2003
When the New Republic Didn’t Pile Up on Your Nightstand
Reading Michael Kinsley makes me pine for the good old days of the New Republic, before Martin Peretz I guess sort of lost it and promoted Andrew Sullivan and then hired Michael Kelly and all that kind of stuff. You know, back when you read the magazine the day it arrived, a devotion that seems almost charming compared with your current habit of letting issue after issue pile up on your nightstand, buried amid months of unlikely-ever-to-be-read copies of The Atlantic, Harper’s, and Smithsonian.
Here’s Kinsley with the sharpest arguments yet against the Republican Party’s party-line nonsense about wannabe-a-justice Miguel Estrada (“Estrada’s Omertà,” Slate, February 13.):
Like gangsters taking the Fifth, nominees for federal judgeships now have their reason for staying mum down to a mantra. Repeat after me: “My view of the judicial function, Senator, does not allow me to answer that question.” Miguel Estrada, President Bush’s nominee for the D.C. Circuit Court of Appeals, used variations on that one many times in refusing to express any opinion on any important legal topic during Judiciary Committee hearings last fall. . . .
Estrada’s “view of the judicial function” is shared by President Bush, congressional Republicans, and conservative media voices hoarse with rage that Democratic senators want to know what someone thinks before making him or her a judge. The Estrada view is that judges should not prejudge the issues that will come before them. . . .
Obviously, Estrada’s real reason for evasiveness is the fear that if some senators knew what his views are, they would vote against him. . . .
Potential judges should not reveal their views on legal issues because a judge should have an open mind? Hiding your views doesn’t make them go away. If the problem is judges having views on judicial topics, rather than judges expressing those views, then allowing people to become judges without revealing their views is a solution that doesn’t address the problem. And if the problem is judges who fail to put their previous views aside, rather than judges having such views to begin with, then allowing judicial nominees to hide those views until it’s too late is still a solution that is logically unrelated to the problem. . . .
[I]t’s inevitable that anyone who has been an appellate judge for a while will have published opinions that touch on many of the issues he or she must decide in the future. There is not even an expectation of open-mindedness. . . .
Most legal rulings come from judges who have been on the bench for a while. If that is not a problem, why is it a problem if they have thought about and reached conclusions on some important legal issues before they join the bench? The answer is that it is not a problem. It ought to be a problem if a potential judge has not thought about important legal issues and has no views on them. But instead, the problem is how to keep a judgeship candidate’s opinions hidden until he or she is safely confirmed for a lifetime appointment, and the phony issue of “prejudging” is a strategy for doing that.
Judgeship nominations bring out the hypocrite in politicians of both parties, but the Republican hypocrisy here is especially impressive. When [former President] Bill Clinton was appointing judges, the senior Judiciary Committee Republican, Sen. Orrin Hatch [R-Utah], called for “more diligent and extensive … questioning of nominees’ jurisprudential views.” Now Hatch says Democrats have no right to demand any such thing. . . .
The seat Republicans want to give Estrada is only open because Republicans successfully blocked a Clinton nominee. Two Clinton nominations to the D.C. Circuit were blocked because Republicans said the circuit had too many judges already. Now Bush has sent nominations for both those seats. Hatch and others accuse Democrats of being anti-Hispanic for opposing Estrada. With 42 circuit court vacancies to fill, Estrada is the only Hispanic Bush has nominated. Clinton nominated 11, three of whom the Republicans blocked.”
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