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Friday, February 28, 2003



February 27, 2003

Dear Senator Frist, Senator Daschle, Senator Hatch, and Senator Leahy:

I write in connection with the nomination of Miguel Estrada. Some Democrat Senators have indicated that they would like to know more about Mr. Estrada’s record before a vote occurs. As I stated in my letter of February 12 to Senator Daschle and Senator Leahy, we believe that the Senate has had sufficient time and possesses sufficient information to vote on Miguel Estrada. More important, a majority of Senators have indicated that they possess sufficient information and would vote to confirm him.

But if some Senators believe they must have more information before they will end the filibuster of this nomination, we respectfully suggest that there are three different and important sources of information that have been and remain available and that would appropriately accommodate the request for additional information. We ask that you encourage interested Senators to avail themselves of these sources as soon as possible.

First, as I have written to you previously, individual Senators who wish to meet with Miguel Estrada may and should do so immediately. We continue to believe that such meetings could be very useful to Senators who wish to learn more about Mr. Estrada’s record and character.

Second, Senators who have additional questions for Mr. Estrada should immediately pose such questions in writing to him. We propose that additional questions (in a reasonable number) be submitted in writing to Mr. Estrada by Friday, February 28. Mr. Estrada would endeavor to answer such questions in writing by Tuesday, March 4. He would answer the questions forthrightly, appropriately, and in a manner consistent with the traditional practice and obligations of judicial nominees, as he has before.

Third, Senators who wish to know more about Mr. Estrada’s performance and approach when working in the United States Government -- and, in particular, how that relates to his possible future performance as a Circuit Judge -- should immediately ask in writing for the views of the Solicitors General, United States Attorney, and Judges for whom Mr. Estrada worked and ask them to respond by Tuesday, March 4. In particular, interested Senators could immediately send a joint letter to each of the following individuals for whom Mr. Estrada has worked in the United States Government: Judge Amalya Kearse, Justice Anthony Kennedy, former United States Attorney Otto Obermaier, former Solicitor General Ken Starr, former Solicitor General Drew Days, former Solicitor General Walter Dellinger, and former Solicitor General Seth Waxman. In our judgment, these men and women could provide their views on Mr. Estrada’s background and suitability to be a Circuit Judge by March 4 without sacrificing the integrity of the decisionmaking processes of the Judiciary, United States Attorney’s office, and Solicitor General’s office. And their views could assist Senators who seek more information about Mr. Estrada.

We believe that these sources of information, which have been available for some time, would readily accommodate the desire for additional information expressed by some Senators who have thus far supported the filibuster of a vote on this nominee. We ask that you encourage Senators who have objected to the scheduling of a vote to avail themselves of these sources of information. And we respectfully ask that the Senate vote up or down as soon as possible on Mr. Estrada’s nomination, which has been pending for nearly two years.

Please do not hesitate to contact me with any questions.



Alberto R. Gonzales
Counsel to the President

The Honorable Thomas A. Daschle
The Honorable Patrick Leahy
The Honorable Bill Frist
The Honorable Orrin Hatch

Copy: All other United States Senators

Wednesday, February 26, 2003



February 25, 2003

Dear Senators:

I write in response to your letter of today in which you effectively request a second hearing for John Roberts and Deborah Cook. The Committee and Chairman Hatch will determine, of course, the appropriate scheduling of hearings and mark-ups for judicial nominees.

As to Mr. Roberts and Justice Cook, we respectfully do not agree that a second hearing is necessary or appropriate. At their hearing, Chairman Hatch permitted Committee members as much time as they wanted (well into the evening) to ask questions. Senators also had the opportunity to submit follow-up questions. Several Senators did so, and the nominees answered promptly. (I also note that your letter of today does not identify any particular issues or cases or matters that require further inquiry or, more important, why such questions were not asked at the hearing or in written follow-up questions.)

We also believe there is no legitimate justification for the extraordinary delays that already have occurred with respect to these two nominees, who were nominated on May 9, 2001. And there is no justification for further delay. On several occasions during the 2000 campaign, Senator Leahy expressly agreed with then-Governor Bush that every judicial nominee should receive an up-or-down Senate floor vote within 60 days of nomination.
Governor Bush and I, while we disagree on some issues, have one very significant issue on which we agree. He gave a speech a while back and criticized what has happened in the Senate where confirmations are held up not because somebody votes down a nominee but because they cannot ever get a vote. Governor Bush said: You have the nominee. Hold the hearing. Then, within 60 days, vote them up or vote them down. Don’t leave them in limbo. Frankly, that is what we are paid to do in this body. We are paid to vote either yes or no – not vote maybe. When we hold a nominee up by not allowing them a vote and not taking any action one way or the other, we are not only voting ‘maybe,’ but we are doing a terrible disservice to the man or woman to whom we do this.
October 3, 2000.

Both of these superb nominees have been pending nearly two years since their nominations on May 9, 2001. Indeed, John Roberts was first nominated to the D.C. Circuit more than 11 years ago. The Senate has had more than enough time to assess their records, qualifications, and integrity. We respectfully suggest that it is time to hold a vote in Committee and then an up-or-down vote on the floor.

We always offer the opportunity for Senators to meet individually with nominees, and that opportunity has existed for more than 21 months. Given the time that has passed since nomination, however, we do not believe that any additional meetings must or should delay Committee mark-up or Senate floor votes on these two outstanding nominees.

Thank you for your letter. I respectfully urge you to support Mr. Roberts and Justice Cook.



Alberto R. Gonzales

The Honorable Patrick J. Leahy
The Honorable Edward M. Kennedy
The Honorable Joseph R. Biden, Jr.
The Honorable Herbert Kohl
The Honorable Dianne Feinstein
The Honorable Russell D. Feingold
The Honorable Charles E. Schumer
The Honorable Richard J. Durbin
The Honorable John Edwards
United States Senate
Washington, D.C. 20510

cc: The Honorable Orrin G. Hatch

Friday, February 21, 2003

[As received via email from a reader of "How Appealing"]


Dear Members of the Law School Community:

As a graduate of UGA Law School who has remained very active at the law school, I am disturbed by Professor Wilkes’ diatribe regarding Justice Clarence Thomas’ invitation to speak at Georgia Law School Graduation this year. While I hesitate to give too much credence to the piece by responding, I fear that silence in the face of such a letter could be wrongly perceived as agreement or indifference. I therefore feel compelled to offer my two cents, for whatever it is worth.

Professor Wilkes’ vitriolic cry for censorship and intolerance has no place in society, and certainly no place in the academic arena, the very purpose of which is to promote free and open debate. And while no one disputes Professor Wilkes’ right to express his views, that is not to say that his choice to do so in this manner is appropriate, given his position and his methods. Although freedom of expression is an important principle, it is not the only principle by which professors at state universities should be guided. They also must take account of the institutional effects that their action may have. By engaging in these kinds of theatrics – and by "theatrics," I do not mean Professor Wilkes's protest, but the intemperate manner in which he goes about his protest, using phrases like "enemy of liberty" -- Professor Wilkes harms the entire university community, and thereby does not serve the taxpayers who fund his academic pursuits.

Further, to label the decision to invite a sitting Justice of the United States Supreme Court to speak at a law school graduation as “appalling, unwise, and perverse – the embodiment of bad judgment” cannot be justified on any level, and such personal attacks by a professor on the considered and free choices of his own students demonstrates an appalling lack of professionalism, even if it does fall within the scope of his rights.

Unfortunately, Professor Wilkes’ irrational rantings regarding Justice Thomas are hardly surprising. Professor Wilkes, like many in academia today, is tolerant of everything except anyone who disagrees with him on anything. Of course, the viability of his position is dependent upon censorship and intolerance, because if those who disagree with him are allowed to make their case, the inherent fallibility of many of his views is exposed.

But I digress. Professor Wilkes’ repeated argument that Justice Thomas does not “deserve the honor” of speaking at UGA Graduation is laughable. The fact that the man is a sitting Supreme Court Justice in and of itself rebuts this ridiculous notion. And this reason does not even take into consideration the fact that Justice Thomas is one of Georgia’s own sons and great success stories, rising from a segregated and impoverished childhood to be the second African American on the Supreme Court. Indeed, it is Justice Thomas who is honoring the law students by graciously agreeing to speak at graduation despite his important and demanding schedule. To suggest that Justice Thomas is somehow the one being honored is the height of arrogance.

Professor Wilkes devotes much of his piece attacking various positions taken by Justice Thomas while on the Supreme Court. I suppose it should go without saying, but Justice Thomas was nominated by the President and confirmed by the bipartisan Senate to serve on the Supreme Court. And, the decisions Professor Wilkes criticizes are only as contemptible as he suggests if you begin from his well-known ideological viewpoint (i.e., left-wing pro-criminal). To those inclined toward a less radical judicial philosophy, the fact that Justice Thomas is dedicated to enforcing the Constitution as written and that he refuses to disregard the rule of law to make policy is not nearly so outrageous or offensive. Indeed, some have even gone so far as to suggest that such an approach should be lauded, not criticized.

And, while a response to all of the cases Professor Wilkes cites is unnecessary, his comment that “Justice Thomas is one of the five right-wing Republican justices who handed the presidency to Republican candidate George W. Bush” is so far off that it simply must be addressed. In the light of the independent recounts performed in Florida the year after the election, even The New York Times, which is not exactly known for its pro-conservative disposition, conceded that “George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward.” John Broder & Ford Fessenden, Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote, N.Y. TIMES, Nov. 12, 2001 at A1. See also Jackie Calmes and Edward P. Foldessy, Florida Revisited: In Election Review, Bush Wins Without Supreme Court Help, WALL ST. J., No. 12, 2001 (“In other words, despite the ferocity with which critics have assailed the logic of [the Supreme Court’s] decision, the findings indicate that the Supreme Court didn’t steal the presidential election from Mr. Gore, as some Democrats believe.”) Of course, Professor Wilkes ignores these well-accepted facts, because they do not comport with his extremist views. In other words, he’s already made up his mind, so please do not try to confuse him with the facts.

However misguided, unfounded and even laughable Professor Wilkes’ views are, I support his right to hold them and to act upon them by declining to attend graduation, because unlike Professor Wilkes, I do believe in free and open debate and the intellectual exchange of differing ideas. And, as a practical matter, I think holding graduation without Professor Wilkes is much like what Secretary Rumsfeld recently said about going to war without the French, “Going to war without France is like going deer hunting without your accordion.”

At the end of the day, I suspect Professor Wilkes’ letter does not speak for the majority – or even many -- of the law school community. In fact, I know many of the professors and administrators at UGA well, and I have nothing but the utmost respect for them as professors and as people. But Professor Wilkes’ letter is certainly cause for serious concern about the direction in which the law school is headed. If this type of intolerance and discrimination is permitted to go unchecked, I suspect that direction will be nowhere but down.

Holly A. Pierson

Tuesday, February 18, 2003

[As received via forwarded email from a reader of "How Appealing"]


By Donald E. Wilkes, Jr.
Professor of Law
UGA School of Law
February 18, 2003

Dear Colleagues, Law Students, and Other Members of the Law School Community:

On Monday, November 25, 2002, the law faculty of the University of Georgia School of Law received a memorandum from Dean David Shipley which begins as follows: "I am pleased to announce that Justice Clarence Thomas has accepted the invitation extended by me, Class of 2003 President Josh Belinfante, Class of 2003 Vice President Megan Jones, and Class of 2004 Vice President Rebecca Franklin to be our graduation speaker on May 17, 2003."

The decision to invite Justice Thomas is appalling, unwise, and perverse–the embodiment of bad judgment. Anyone who has carefully examined his opinions in the fields of criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus knows that Justice Thomas has one of the most anti-human rights voting records in modern Supreme Court history. This man does not deserve the honor of being invited to speak at the law school graduation ceremony. He is inimicus libertatis, the enemy of liberty. A worse choice of a judge as graduation speaker could hardly have made. Inviting a judge with his lamentable record on individual rights issues is a terrible mistake and sets a bad precedent. He is not the type of judge who should be held up as an example for students on the verge of entering the legal profession. He is unworthy of the high honor being bestowed on him by this law school. His appearance here will, in the eyes of future generations, be a blot on the reputation of and an embarrassment to this law school.

The poor judgment reflected in the disastrous decision to invite Justice Thomas unfairly places graduating law students on the horns of a dilemma. They must choose between, on the one hand, being forced to attend a ceremony where Justice Thomas will be feted and to listen politely to and applaud Justice Thomas's speech, or, on the other hand, foregoing attendance at their own graduation ceremony. Similarly, law faculty members must either attend Justice Thomas's speech or miss the ceremony.

And who is this man the students and faculty will be forced to listen to if they attend the ceremony? Justice Thomas is a reactionary judicial activist–a right-wing extremist pretending to be a neutral and impartial judge. His judicial philosophy amounts to "a new, aggressive, and repressive judicial activism." Niles, Clarence Thomas: The First Ten Years Looking For Consistency, 10 Am. U. J. Gender Soc. Pol'y & L. 327, 332 (2002). This man's judicial philosophy embodies the right-wing extremist agenda. He has a narrow view of the basic rights of Americans and usually votes to denigrate and attenuate those rights. In cases involving criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus he almost always sides with the government and rejects the claims of individuals that their rights were violated. "Thomas has . . . been a consistent member of the Court's most conservative wing since his first term. . . . If judicial liberalism is defined in the traditional fashion as support for individuals' rights in disputes with the government, Thomas stands out as a strong conservative in any analysis. . . . Justice Thomas has established a consistent and predictable voting record as a dependable member of the Court's most conservative wing. . . . [H]e articulates . . . a vision of constitutional interpretation that . . . advances his preferences for . . . diminution of constitutional protections for individuals." Smith, Clarence Thomas: A Distinctive Justice, 28 Seton Hall L. Rev. 1, 2, 28 (1997). He believes that the role of the courts in protecting individual rights is very limited. He not infrequently expresses an inclination to overrule landmark pro-human rights Supreme Court precedents. He doesn't think much of the writ of habeas corpus. Indeed, in O'Neal v. McAninch, 513 U. S. 432, 447 (1995), in a dissenting opinion, he went so far as to assert: "We have ample cause to be wary of the writ [of habeas corpus!]." I can recall only one case where Justice Thomas has ever voted in favor of granting relief to a habeas corpus petitioner, and in that case Justice Thomas, along with Justice Scalia, took a narrower view than the Court of the petitioner's rights and only concurred in part and in the judgment. Lynce v. Mathis, 519 U. S. 433 (1997). He is shrilly pro-death penalty. He "expresses little sympathy for the plight of the incarcerated." Note, Lasting Stigma: Affirmative Action and Clarence Thomas's Prisoners' Rights Jurisprudence, 112 Harv. L. Rev. 1331, 1341 (1999). He is "the first justice to criticize, even indirectly, the ruling in Brown [v. Board of Education] . . ." Id. at 1348 n. 50. Furthermore, some of Justice Thomas's opinions rejecting claims of violations of rights are written a mocking, scornful tone inappropriate in a judge but typical of a right-wing extremist.

In deciding individual rights cases Justice Thomas almost always votes the same as the two other right-wing extremists serving on the Court, Chief Justice Rehnquist and Justice Scalia. See, e.g., Wilkins, Worthington, Chow, Chow & Becker, Supreme Court Voting Behavior: 2000 Term, 29 Hastings Const. L. Q. 247 (2002) (tables of voting patterns of Supreme Court justices since 1991 term). Justice Thomas is therefore one of the principal reasons why tragically in recent years the Supreme Court has been implementing a counterrevolution in criminal procedure and individual rights–a counterrevolution which has narrowed the legal rights and remedies of Americans against government, enlarged the power of the state over the individual, and transformed the role of the Court from that of the keeper of the nation's conscience to that of a cost-benefit analysis calculating machine.

Impius et crudelis judicandus est qui libertati non favet, the old legal maxim says. He is to be judged impious and cruel who does not favor liberty. This maxim fits Justice Thomas to a T.

Moreover, Justice Thomas is one of the five right-wing Republican justices who handed the presidency to Republican candidate George W. Bush in Bush v. Gore, 531 U. S. 98 (2000), the most outrageously partisan decision of the Supreme Court in history, a decision in which, as Vincent Bugliosi has written, "the Court committed the unpardonable sin of being a knowing surrogate for the Republican party instead of being an impartial arbiter of the law." Bugliosi, None Dare Call It Treason, The Nation, at 11 (Feb. 5, 2001).

In this letter I limit my critique of Justice Thomas to his voting record while on the Supreme Court. I put to one side the serious questions that have been raised about whether Justice Thomas lied or was deceptive or evasive when he testified at his U. S. Senate confirmation hearing in 1991. See, e.g., C. Smith & J. Baugh, The Real Clarence Thomas: Confirmation Veracity Meets Performance Reality (2000); J. Mayer & J. Abramson, Strange Justice (1994); Baugh & Smith, Doubting Thomas: Confirmation Veracity Meets Performance Reality, 19 Seattle U. L. Rev. 455 (1996); Bell, Clarence Thomas: Evasive or Deceptive, 21 N. C. Cent. L. J. 194 (1995); Tushnet, Book Review, 63 Geo. Wash. L. Rev. 466 (1995). Contra: D. Brock, The Real Anita Hill (1993); O'Daniel, Book Review, 5 Tex. Rev. L. & Pol. 495 (2001).

When Justice Thomas appeared at the University of North Carolina School of Law in 2002, the Black Law Students Association there staged a teach-in protest, and the five African-American law faculty members boycotted his appearances and issued a joint letter which stated in part: "We will not participate in any institutional gesture that honors and endorses what Justice Thomas does." To all of which I say, Amen.

In protest of Justice Thomas's appearance here I shall not attend the law school graduation ceremony. Instead, at the time Justice Thomas speaks, I will deliver my own speech at the Arch, the Tate Center, or some other appropriate site on campus a good distance away from the law school graduation ceremony. The speech will focus on Justice Thomas's deplorable record as a Supreme Court justice and the blows that record has inflicted on liberty, freedom, rights, and justice. My speech will be part of a lawful, respectful, peaceable, classic exercise of First Amendment rights, and I hope there will be many others there to hear me and to express their concern about Justice Thomas's anti-individual rights decisions and right-wing extremist ideology.

Here is a summary of a few of the numerous Supreme Court decisions in the fields of criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus where Justice Thomas has voted against an individual's claim that his or her rights were violated:

In Hudson v. McMillian, 503 U. S. 1 (1992), the Court held that the eighth amendment cruel and unusual punishments clause is violated when prison officials maliciously and sadistically use force to cause harm to an inmate, whether or not significant injury is evident. The plaintiff inmate had proved in federal district court that while he was in handcuffs and shackles two prison guards had, when there was no need to do so, punched him in the mouth, eyes, chest, and stomach, as well as kicked and punched him from behind. As result of this episode the inmate suffered minor bruises, swelling of his face, mouth, and lip, loosened teeth, and the cracking of his partial dental plate. The inmate had been awarded $800.00 in damages against the two guards and a prison supervisor who watched the beating but did nothing except tell the two guards "not to have too much fun." Justice Thomas filed a dissenting opinion in which Justice Scalia joined. In his dissenting opinion Justice Thomas argued that (1) a use of force that causes only insignificant harm is not cruel and unusual punishment, and (2) the cruel and unusual punishments clause regulates sentences, but not the treatment of prisoners. Justice Thomas's dissent is notable for its "combative, faintly mocking tone." Note, Lasting Stigma: Affirmative Action and Clarence Thomas's Prisoners' Rights Jurisprudence, 112 Harv. L. Rev. 1331, 1345 (1999). In that dissent, Justice Thomas claimed that "[t]oday's expansion of the Cruel and Unusual Punishments Clause [is] beyond all bounds of history and precedent . . . and another manifestation of the pervasive view that the Federal Constitution must address all ills in our society." He added: "The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation." 503 U. S. at 28. Justice O'Connor, speaking for the majority, reproved Justice Thomas in these words: "To deny, as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the 'concepts of dignity, civilized standards, humanity, and decency' that animate the Eighth Amendment." 503 U. S. at 11. Justice Thomas's dissent in this case prompted an editorial in The New York Times labeling him "The Youngest, Cruelest Justice." The Youngest, Cruelest Justice, N. Y. Times, at A24 (Feb. 27, 1992).

In Morgan v. Illinois, 504 U. S. 719 (1992), the Court held that (1) in a capital punishment trial a juror who will always impose the death penalty for capital murder is not "impartial" in the sense required by the sixth amendment, (2) the Constitution requires that voir dire directed to this specific "bias" be provided upon the defendant's request, and (3) that the more general questions about "fairness" and ability to "follow the law" that were asked during voir dire in this case were inadequate. Justice Scalia filed a dissenting opinion, which Chief Justice Rehnquist and Justice Thomas joined.

In Herrera v. Collins, 506 U. S. 390 (1993), Justice Thomas, along with Justices O'Connor, Scalia, and Kennedy, joined in Chief Justice Rehnquist's opinion for the Court, which held that (1) even in a death sentence case it was not a violation of due process for Texas to require that motions for a new trial based on newly discovered evidence be filed within 30 days of sentencing, and (2) a claim of actual innocence based on newly discovered evidence is not grounds for federal habeas corpus relief, even where the habeas petitioner has been sentenced to death.

In Graham v. Collins, 506 U. S. 461 (1993), Justice Thomas, along with Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy, joined in Justice White's opinion for the Court, which denied federal habeas corpus relief to a Texas death row inmate based on one of the numerous obstacles to habeas relief invented by the Supreme Court in recent years to curtail the scope of the writ of habeas corpus. Justice Thomas also filed a concurring opinion which he hostilely described the NAACP Legal Defense and Educational Fund's concerted national litigative campaign against the constitutionality of the death penalty in the 1960's and early 1970's as a campaign "waged by a small number of ambitious lawyers and academics on the Fund's behalf." 506 U. S. at 480. These callous, insensitive comments were issued the day after the death of Justice Thurgood Marshall.

In Brecht v. Abrahamson, 507 U. S. 619 (1993), Justice Thomas, along with Justices Stevens, Scalia, and Kennedy, joined in Chief Justice Rehnquist's opinion for the Court, which changed the standard of harmless error in federal habeas corpus proceedings to a less onerous one, i.e., one which makes it more likely that a violation of a habeas petitioner's constitutional rights will be deemed harmless error and that therefore habeas relief will be denied. The new standard adopted by the Court previously had been limited to claims of nonconstitutional error in federal criminal cases.

In Withrow v.Williams, 507 U. S. 680 (1993), the Court held that a claim that a confession obtained in violation of Miranda v. United States, 384 U. S. 436 (1966), was admitted at the petitioner's state criminal trial may be raised in a federal habeas corpus proceeding. Justice O'Connor filed opinion concurring in part and dissenting in part
in which Chief Justice Rehnquist joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined, arguing that Miranda claims should be cognizable in federal habeas proceedings brought by state prisoners only in the event the state courts had denied the petitioner an opportunity for full and fair litigation of the Miranda claim (which would make it nearly impossible to ever obtain federal habeas relief based on a Miranda claim).

In J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994), the Court held that the equal protection clause of the fourteenth amendment forbids intentional discrimination on the basis of gender in the trial jury selection process, just as it prohibits discrimination on the basis of race. Chief Justice Rehnquist filed a dissenting opinion. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined.

In Simmons v. South Carolina, 512 U. S. 154 (1994), the Court held that (1) the state, which had raised the specter of the defendant's future dangerousness, violated the defendant's due process rights by refusing to instruct the jury that, as alternative to a death sentence, a sentence of life imprisonment carried with it no possibility of parole, and (2) the trial court's jury instruction that life imprisonment was to be given its ordinary meaning and that jury was not to consider parole did not satisfy in substance defendant's request for a jury charge on parole ineligibility. Justice Scalia filed a dissenting opinion in which Justice Thomas joined.

In McFarland v. Scott, 512 U. S. 849 (1994), the Court held that (1) the 1988 Act of Congress creating a statutory right to qualified legal representation in federal habeas corpus proceedings for state death row inmates includes a right to legal assistance in the preparation of a habeas corpus petition, and that therefore the right to appointed counsel created by the statute adheres prior to filing of a formal, legally sufficient habeas petition, and (2) the federal district court has jurisdiction to enter a stay of execution where necessary to give effect to the state death row inmate's statutory right to appointment of habeas corpus counsel. Justice Thomas filed a dissenting opinion in which Chief Justice Rehnquist and Justice Scalia joined. In his dissenting opinion, Justice Thomas argued that (1) a district court lacks jurisdiction to grant a stay until an application for a stay has been filed, and (2) a district court cannot appoint counsel under the statute until the death row inmate has actually filed a federal habeas corpus petition.

In Holder v. Hall, 512 U. S. 874 (1994), the Court held that the plaintiff black voters could not maintain a vote dilution challenge to a government body, such as county commission, under § 2 of Voting Rights Act of 1965. Justice Thomas filed an opinion, joined in by Justice Scalia, concurring in the judgment. In his opinion Justice Thomas asserted that "a systematic reassessment of our interpretation of § 2 is required in this case," complained that "the broad reach" which prior Supreme Court decisions had given to the Act "has produced such a disastrous misadventure in judicial policymaking," and urged the overruling of Thornburg v. Gingles, 478 U. S. 30 (1986), which had held that proof of vote dilution could establish a violation of § 2. 512 U. S. at 892, 893, 943. In criticizing numerous previous Supreme Court interpretations of the Act, Justice Thomas waxed hyperbolic: "We would be mighty Platonic guardians indeed if Congress had granted us the authority to determine the best form of local government for every county, city, village, and town in America. But under our constitutional system, this Court is not a centralized politburo appointed for life to dictate to the provinces the ‘correct' theories of democratic representation, the ‘best' electoral systems for securing truly ‘representative' government, the ‘fairest' proportions of minority political influence, or, as respondents would have us hold today, the ‘proper' sizes for local governing bodies." 512 U. S. at 912.

In Schlup v. Delo, 513 U. S. 298 (1995), involving a state death row inmate seeking to proceed on a second federal habeas corpus petition raising claims either raised in or omitted from his initial federal habeas petition, the Court held that the standard of Murray v. Carrier, 477 U. S. 478 (1986), which requires a procedurally defaulted habeas petitioner to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent, rather than the more stringent standard of Sawyer v. Whitley, 505 U. S. 333 (1992), under which a petitioner must demonstrate by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him guilty, governs the miscarriage of justice inquiry when a petitioner who has been sentenced to death raises a claim of actual innocence to avoid a procedural bar to consideration of merits of constitutional claims in a second or subsequent federal habeas petition. Chief Justice Rehnquist filed a dissenting opinion in which Justices Kennedy and Thomas joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined.

In O'Neal v. McAninch, 513 U. S. 432 (1995), in which the federal habeas corpus petitioner was a state prisoner convicted of murder, the Court held that where in a federal habeas corpus proceeding the federal district judge determines that there has been a violation of the petitioner's federal constitutional rights in the state court criminal proceedings but the federal district judge is in grave doubt about whether or not that error is harmless, the judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a "substantial and injurious effect or influence in determining the jury's verdict"). Justice Thomas filed a dissenting opinion in which Chief Justice Rehnquist and Justice Scalia joined.

In Kyles v. Whitney, 514 U. S. 419 (1995), the Court granted federal habeas corpus relief to a state death row inmate on grounds the prosecution had, in violation of due process, suppressed exculpatory evidence. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justices Kennedy and Thomas joined.

In M. L. B. v. S. L. J., 519 U. S. 102 (1996), the Court held, based in part on the landmark decision in Griffin v. Illinois, 351 U. S. 12 (1956) (fourteenth amendment due process and equal protection clauses require that indigents be provided a free transcript when they appeal), and other precedents building on Griffin, that the due process and equal protection clauses were violated when the state denied an indigent mother the right to appeal the termination of her parental rights unless she prepaid record preparation fees of over $2,300. Justice Thomas filed a dissenting opinion in which Justice Scalia joined, and in which Chief Justice Rehnquist joined in part. In Part II of his dissenting opinion Justice Thomas wrote that "if this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny." 519 U. S. at 139. Chief Justice Rehnquist declined to join in Part II of Justice Thomas's dissent.

In Lindh v. Murphy, 521 U. S. 320 (1997), the Court held that the provisions of the Title I of the Antiterrorism and Effective Death Penalty Act of 1996, which greatly curtailed the availability of federal postconviction habeas corpus relief, did not apply in noncapital cases to habeas petitioners whose habeas petitions had been filed before enactment of Title I. Chief Justice Rehnquist filed dissenting opinion in which Justices Scalia, Kennedy, and Thomas joined.

In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357 (1998), Justice Thomas delivered the opinion of the Court, in which Chief Justice Rehnquist and Justices O'Connor, Scalia, and Kennedy joined, holding that evidence obtained in violation of the fourth amendment is admissible in a parole revocation proceeding, even if the officer conducting the illegal search or seizure is aware or has reason to be aware of the suspect's parole status.

In Mitchell v. United States, 526 U. S. 314 (1999), the Court held that (1) neither the defendant's guilty plea nor her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing, and (2) the sentencing court could not draw adverse inferences from the defendant's silence in determining facts relating to circumstances and details of the crime. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist, Justice O'Connor, and Justice Thomas joined. Justice Thomas also filed his own dissenting opinion in which he attacked two landmark fifth amendment self-incrimination privilege decisions, Griffin v. California, 380 U. S. 609 (1965) (jury charge authorizing jury to infer guilt from a defendant's failure to testify violates self-incrimination privilege), and Carter v. Kentucky, 450 U. S. 288 (1981) (self-incrimination privilege secures a defendant right to have jury instructed that his failure to testify must be disregarded), argued that these two decisions "should be reexamined," and added: "Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case." 526 U. S. at 342, 343.

In City of Chicago v. Morales, 527 U. S. 41 (1999), the Court held unconstitutionally vague a 1992 municipal ordinance which required a police officer, on observing a person whom he reasonably believed to be a criminal street gang member loitering in any public place with one or more other persons, to order all such persons to disperse, and made failure to obey such an order a crime. Under this ordinance 42,000 persons had been arrested during the three years it was enforced. Justice Thomas filed a dissenting opinion in which Chief Justice Rehnquist and Justice Scalia joined.

In Dickerson v. United States, 530 U. S. 428 (2000), the Court held that the landmark decision in Miranda v. Arizona, 384 U. S. 436 (1966), was a constitutional decision that could not be overturned by an Act of Congress and that therefore 18 U. S. C. § 3501, which was enacted in 1968 and purported to made admissible in federal court confessions obtained in violation of Miranda, was unconstitutional. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. At the end of that dissenting opinion Justice Scalia announced that "until § 3501 is repealed, [I] will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary [even it was obtained in violation of Miranda]." 530 U. S. at 465.

In City of Indianapolis v. Edmond, 531 U. S. 32 (2000), the Court held that a highway motor vehicle checkpoint (i.e., roadblock) program which was unaccompanied by individualized suspicion of the vehicles stopped, and whose primary purpose was to detect evidence of ordinary criminal wrongdoing (i.e., drug offenses), violated the fourth
amendment. Chief Justice Rehnquist filed dissenting opinion in which Justice Thomas joined and in which Justice Scalia joined in part. Justice Thomas also filed his own dissenting opinion.

In Shafer v. South Carolina, 532 U. S. 36 (2001), a follow-up to Simmons v. South Carolina, 512 U. S. 154 (1994), the Court held that (1) whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's amended sentencing scheme, due process requires that the jury must be informed that a life sentence carries no possibility of parole, and (2) neither the trial court's instruction nor defense counsel's closing argument was sufficient to inform the jurors of the defendant's parole ineligibility. Justice Thomas and Justice Scalia each filed a dissenting opinion.

In Ferguson v. City of Charleston, 532 U. S. 67 (2001), which involved the drug testing by a public hospital of unsuspecting pregnant women suspected of cocaine use and the forwarding of positive test results to the police so the women could be arrested on criminal charges, the Court held that (1) a state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure, and (2) the interest in using the threat of criminal sanctions to deter pregnant women from drug abuse does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid search warrant. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined.

In Atwater v. City of Lago Vista, 532 U. S. 318 (2001), the "soccer mom" case, Justice Thomas, along with Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy, joined in the Justice Souter's majority opinion, which held that police do not violate the Fourth Amendment when they make a warrantless arrest for a minor criminal offense not involving a breach of the peace, such as a misdemeanor seatbelt violation punishable only by a fine.

In INS v. St. Cyr, 533 U. S. 289 (2001), the Court held that: (1) the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) did not deprive the federal courts of jurisdiction to review a permanent resident alien's habeas corpus petition, and (2) the provisions of AEDPA and IIRIRA repealing discretionary relief from deportation did not apply retroactively to the alien, who had pleaded guilty to a sale of controlled substances prior to statutes' enactment. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined. In that dissenting opinion Justice Scalia "made the unprecedented argument that the [Habeas Corpus] Suspension Clause [of the U. S. Constitution] places no restriction whatsoever on the permanent abrogation or redefinition of the writ of habeas corpus, but rather prohibits only temporary suspensions," and which "maintained that the inquiry into the discretionary powers of the executive to release a prisoner lay outside the scope of the writ as it existed in 1789, and therefore, outside the reach of the Suspension Clause." Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 Colum. Hum Rts. Rev. 555, 559-60 (2002).

In Lee v. Kemna, 534 U. S. 362 (2002), the Court held that the federal courts were not procedurally barred from considering the federal habeas corpus petitioner's due process claim that he should have been granted an overnight continuance at his state murder trial so that he could locate subpoenaed, previously present, but suddenly missing alibi witnesses key to his defense, where the petitioner had substantially, if imperfectly, made to the trial court the basic showing required under state law to obtain a continuance. Justice Kennedy filed a dissenting opinion, in which Justices Scalia and Thomas joined.

In Alabama v. Shelton, 535 U. S. 654 (2002), the Court held that the sixth amendment right to counsel extends to a criminal defendant sentenced to a suspended or probated term of imprisonment. Justice Scalia filed a dissenting opinion, in which Chief Justice Rehnquist, Justice Kennedy, and Justice Thomas joined.

In Atkins v. Virginia, 536 U. S. 304 (2002), the Court held that the execution of mentally retarded criminal offenders violates the cruel and unusual punishments clause of the eighth amendment. Chief Justice Rehnquist filed a dissenting opinion in which Justices Scalia and Thomas joined. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined.

In Hope v. Pelzer, 536 U. S. 730 (2002), the Court held that (1) under the circumstances, the alleged handcuffing of the plaintiff prison inmates to a hitching post was a gratuitous infliction of wanton and unnecessary pain which violated the eighth amendment cruel and unusual punishments clause, and (2) the defense of qualified immunity was precluded at the summary judgment stage of this civil rights action. Justice Thomas filed a dissenting opinion, joined in by Chief Justice Rehnquist and Justice Scalia, claiming that the majority opinion was "based . . . on [the majority's] own subjective views on appropriate methods of prison discipline." 536 U. S. at —, 122 S. Ct. at 2519-20. He also maintained that the device to which the inmates had allegedly been affixed was a "restraining bar," not a "hitching post." 536 U. S. at — n. 1, 122 S. Ct. at 2520 n. 1.

In Board of Education v. Earls, 536 U. S. 822 (2002), Justice Thomas wrote the opinion for the Court, joined in by Chief Justice Rehnquist, Justices Scalia, Kennedy, and Breyer, upholding the constitutionality of mandatory suspicionless drug testing of all students in a public school district participating in competitive extracurricular activities.

There are, of course, in comparison with his numerous pro-government votes, a relatively small number of cases where Justice Thomas's vote in a case in the fields of criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus has been in favor of an individual rights claim. See, e.g., Ring v. Arizona, 536 U. S. 584 (2002); Kyllo v. United States, 533 U. S. 27 (2001); Apprendi v. New Jersey, 530 U. S. 466 (2000); Bond v. United States, 529 U. S. 334 (2000); Florida v. J. L., 529 U. S. 266 (2000); Knowles v. Iowa, 525 U. S. 113 (1998); United States v. Bajakajian, 524 U. S. 321 (1998) (opinion for the Court by Thomas, J.); Chandler v. Miller, 520 U. S. 305 (1997); Lynce v. Mathis, 519 U. S. 433 (1997); Wilson v. Arkansas, 514 U. S. 927 (1995) (opinion for the Court by Thomas, J.); United States v. Williams, 504 U. S. 36 (1992); Jacobson v. United States, 503 U. S. 540 (1992). These surprising cases are, however, merely the exceptions which prove the rule.

Furthermore, to crown all, in Bush v. Gore, 531 U. S. 98 (2000), Justice Thomas, along with Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, and Justice Kennedy, all of whom are Republicans appointed by Republican presidents, joined in the per curiam opinion for the Court which delivered the presidency to Republican candidate George W. Bush. Justice Thomas was one of the five justices who voted to hear the case in the first place, then to grant the infamous stay of the Florida presidential vote recounting, and finally to forbid any further recounting. Bush v. Gore, as I have noted elsewhere, "is the most egregiously partisan ruling in the Supreme Court's history," in which "the court's majority let its desire for a particular partisan outcome have priority over legal principles." Wilkes, A President by Judicial Fiat, Flagpole Magazine, at 8 (Dec. 11, 2002). In Bush v. Gore, as I have noted in my Flagpole article, "the majority justices, in order to rule in Bush's favor, endorsed legal arguments or embraced legal principles which contradicted views they have long espoused and which they would have scorned if proffered by Gore's lawyers." As University of Virginia law professor Michael J. Klarman has written: "Had all the other facts in the Florida election imbroglio remained the same, but the situation of the two presidential candidates been reversed, does anyone seriously believe that the conservative Justices would have reached the same result? Thus, the result in Bush v. Gore depended on the order in which the parties' names appeared on the case caption. . . . I cannot think of another Supreme Court decision about which one can say with equal confidence that reversing the parties, and nothing else, would have changed the result." As I also observed in my article: "For several decades the Supreme Court has been notably unreceptive to claims that a person's rights secured by the equal protection clause of the Fourteenth Amendment were violated, and the Court currently almost always rejects such claims. The Court has insisted that unequal treatment cannot constitute a violation of the equal protection clause unless it is done purposefully, and the five justices who joined in Bush v. Gore regularly vote to deny equal protection claims. Yet in Bush v. Gore these same five justices based their decision in favor of Bush on a novel, expansive interpretation of the equal protection clause, and did so despite the absence of any allegation or proof that the unequal treatment complained of was purposeful." In my article I also stated: "Why, according to Bush v. Gore, was the Florida Supreme Court's decision to recount the presidential votes, based on the state's traditional standard that the clear intent of the voter governs, violative of the equal protection clause? Because, the five-justice majority strangely held, the general standard of voter intent was subject to different interpretations by different vote counters! But why would this be more harmful to Bush than to Gore? And don't the same or similar disparities in vote counting equally exist when the votes are counted the first time? And why this sudden concern with uniformity at the state level by justices who, in the name of federalism, ordinarily insist that state governments be given room for ‘play in the joints'?" In Bush v. Gore, Justice Thomas and the other four right-wing justices "acted suspiciously out-of-character," Niles, Clarence Thomas: The First Ten Years Looking For Consistency, 10 Am. U. J. Gender Soc. Pol'y & L. 327, 341 n. 14 (2002). Thus, Justice Thomas's vote was not only politically partisan, but also hypocritical. Curiously missing in Bush v. Gore are sarcastic comments by Justice Thomas to the effect that the decision to deliver the presidency to Bush amounted to a "National Code of Vote Recounting," or that the decision was "another manifestation of the pervasive view that the Federal Constitution must address all ills in our society." Also notably absent are ironical statements by Justice Thomas about judges acting as "mighty Platonic guardians" of Florida election recount practices, or about how the Supreme "Court is not a centralized politburo appointed for life to dictate to the provinces the ‘correct' theories of democratic representation, the ‘best' electoral systems for securing truly ‘representative' government, [and] the ‘fairest' proportions of minority political influence."

Because Bush v. Gore prohibited any further vote recounts, thousands of Florida voters who had cast legal ballots for President were deprived of the right to have their votes counted. Bush v. Gore is therefore a case where in reality basic rights were denied, not upheld, even though the decision purports to vindicate equal protection rights. As I wrote in my Flagpole article: "The Court's remedy for the equal protection violation it had strained to concoct was bizarre. It barred any more recounting, even though this meant that perhaps thousands of voters whose clear intention would have been evident to anyone doing the recount would be denied their legal right to have their votes counted. The Court evidently thought it was better that a significant number of legal votes be ignored than that some questionable votes should be counted. ‘The end result,' [law professor Alan] Dershowitz tells us, ‘was that a large number of voters who cast proper votes under Florida law but whose votes were not counted were denied their . . . right to vote for president in order to ensure that the votes of others would not be diluted by the improper inclusion of ballots that might be invalid . . . . This is the most perverse misuse of the equal protection clause I have seen in my forty years as a lawyer.'"

Justice Thomas's participation in the scandalous Bush v. Gore decision is, without more, sufficient to render him unworthy of being invited to give the graduation speech.

I urge readers of this letter to personally check out the votes Justice Thomas has cast on individual rights issues while he has been a member of the Supreme Court.

There are two Annexures to this letter. Annexure A is a bibliography of suggested helpful writings on Justice Thomas's voting record in individual rights cases. Annexure B is my Flagpole article on the Bush v. Gore decision.

[Annexures omitted.]

Thursday, February 13, 2003

[This post reproduces in its entirety -- including comments contained in brackets, below -- the description graciously provided by Tobias James Stern of Justice Antonin Scalia's speech today at the University of Pennsylvania Law School.]

Whether one loves Justice Antonin Scalia or not, it cannot be denied that he is, as Penn Law Dean Michael Fitts remarked, “one of the most controversial and influential figures in the law today.” The following is a summary of Justice Scalia’s highly enjoyable lecture on “Constitutional Interpretation.”

Justice Scalia opened with several gracious comments about the Owen Roberts Memorial Lecture and its history. He then admitted that while he could not remember what he spoke about when he last visited Penn Law, it may very well have been on the same subject on which he was about to speak. This was the first of many comments that were met with hearty laughter from the crowd.

Justice Scalia began his speech with a proud announcement that he was a member of a “small but hardy band” of judges and legal thinkers “who believe in Textualism, or Originalism.” According to Scalia, Originalism is a view that the Constitution “means today what it meant when it was adopted.” Although his speech was devoted to defending that view, Scalia was quick to note that it is a minority view “on [his] court,” since only two Justices adopt that theory of judging. [Ed.:Justice Thomas is presumably the other Originalist Justice, although Scalia did not mention him by name.]

Originalism, Scalia assured the attentive crowd, is not a “weird” view. In fact, he claimed, such a judicial method was orthodoxy until the mid-to-late 20th century. Scalia offered the 19th Amendment as an example of what he meant. He claimed that the 19th Amendment would never have been enacted in a judicial environment similar to today’s, because people “would not thought of doing it.” Instead of passing an amendment to allow women the right to vote, someone would simply have filed a lawsuit. As it happened, we were yet to enter what Scalia would later describe as “the era of the ‘Living Constitution,’” and thus the people gave women voting rights “the old fashioned way” when they amended the Constitution.

Scalia continued with an explanation of Originalism’s competition, the so-called “Living Constitution.” Under this view, the Constitution is a “living thing,” and thus to read it in its literal, late-18th Century meaning would be to undermine the judicial process. Scalia claimed, with a healthy dose of sarcasm, “I’m trying to sell you the ‘Dead Constitution,’ but admitted to needing marketing help. On a more serious note, Scalia expressed his dissatisfaction for this view of the Constitution. After all, he explained, the Framers gave us the Bill of Rights with the intention that it protect society, not necessarily to advance it.

With this introduction in place, Justice Scalia attempted to debunk some of the more popular arguments in support of the “Living Constitution” view. According to Scalia, the most popular argument in favor of the “Living Constitution” view is that it provides a level of flexibility that Originalism does not capture. This argument begins with an acknowledgement that Constitution “is 210 years old” and “needs to grow with society.” Scalia derided this view, comparing it to a stock broker assuring his client that the stock market was “merely resting at 8,000” for now. And just like the market is not merely resting, Scalia argued, the Constitution does not “live.” For those that desire Constitutional flexibility, Scalia suggested that they turn to Originalism. He asked rhetorically whether there could be more flexibility than Constitutional amendments or Congressional legislation. Furthermore, Scalia added, to “do it judicially” is “to ossify that decision” in the Constitution. Thus Roe v. Wade, through Casey, is now set in the Constitution. According to Scalia, “[a]ny constitution, living or dead, does not provide flexibility but rigidity – that’s the purpose of a constitution.”

Scalia further warned that listeners should resist the urge to view the Originalist v. Non-Originalist dichotomy in political terms. Scalia argued that there are Non-Originalists amongst Conservatives and Liberals alike. As an example, he offered two decisions that the Court decided on the same day: Romer v. Evans [Ed.: Scalia mistakenly referred to this case as “Romer v. Colorado”] and BMW v. Gore. In Romer, the Court struck down a Colorado law that would have prevented state or local government officials from including homosexuals as a protected group in antidiscrimination laws. Scalia noted, to much laughter, that the decision must have rested on the “’Sexual Preference Clause’ of the Bill of Rights.” In the second case, the Court invalidated a $4 million punitive damages award (reduced to $2 million) in a case in which compensatory damages had been only $4,000. Scalia offered, again to much laughter, that this decision must have rested on the “’Excessive Damages Clause’ of the Bill of Rights.” Scalia expressed no fundamental problem with the underlying sentiments in these cases, but insisted that the courts were the improper forum for such remedies.

The second argument for the “Living Constitution” that Scalia discussed was the assertion that there is no harm in that view because its only effect is to add freedom to our society. While Scalia did not refute that Court decisions using this logic did grant Americans additional freedoms, he noted that freedom-related decisions do not travel on a “one-way street.” As an illustration, Scalia offered the example of a case where a frightened child was allowed to testify against her alleged molester via closed-circuit television [Ed.: Scalia was presumably referring to Maryland v. Craig]. Scalia criticized the Court for allowing such situation, because in his view the confrontation clause of the 6th Amendment is unambiguous with respect to the practice. Scalia argued that while “we may like the result,” that sentiment should not allow us to eliminate the right of confrontation.

To that point, Scalia argued that if the “Living Constitution” view is allowed to predominate, all that one can be sure about is that judicial decisions will cut in the direction that the courts want them to. This, Scalia noted, is why Originalism is such a “hard sell” to judges – simply applying their desires to the Constitution is much more attractive. As a further example of how Originalism can lead to decisions that its followers disagree with, Scalia offers his views on flag burning. While Scalia claimed (to applause and laughter) that he detests “scruffy, sandal-wearing” people burning American flags, he nonetheless cast the fifth vote in favor of holding a conviction of a flag burner in violation of the First Amendment [Ed: Presumably Texas v. Johnson]. Scalia followed this example with an admission that his wife got on his case for his vote when she read about it in the newspaper, as an illustration of how his life would have been easier had be taken the “Living Constitution” view in that situation. When the laughter subsided, Scalia made what he clearly felt was an important point. “Never call me a ‘Strict Constructionist,’” he proclaimed, since “’Strict Constructionists’ give Originalists a bad name.” In his view “you should not interpret the Constitution strictly, you should interpret the Constitution reasonably.” Scalia concluded this portion of his remarks with a linguistic illustration of our country’s shift to the “Living Constitution” camp: While people used to proclaim in frustration that “There oughta be a law” against something, nowadays they argue that “it’s unconstitutional.”

Scalia then shifted from criticizing arguments in favor of the “Living Constitution” to criticisms of the view itself. His first objection was an objection on “principle,” because “legitimacy should always be number one.” This argument can be fairly characterized as one of separation of powers. Scalia argued that interpreting the laws, as John Marshall famously discussed in Marbury v. Madison, is “lawyers’ work” and “judges’ work.” Scalia contrasts this with making law, which he argues is what judges do when they practice the “Living Constitution” method of judging. He argues that because judges do not know society’s wishes, the Constitution is not an invitation to a judge to read in whatever he wishes. Rather, he argues, the Constitution leaves that to Congress, the body that does know society’s wishes.

Scalia summarized his second criticism of the “Living Constitution” view with the political adage that “you can’t beat somebody with nobody.” Scalia claimed that there was no “coherent theory” in opposition to Originalism. In his words, “’Non-Originalism’ is not good enough.” In his view, there is no theory other than Originalism that can set a coherent criterion by which judges should be constrained. Thus, as he put it, “Originalism is the only game in town.”

Scalia’s third argument against the “Living Constitution” camp picked up where his second leaves off. Scalia warned that if the “Living Constitution” view wins out and judges have near-full discretion to impose their will on the Constitution, “judges won’t just be left alone” by the political branches of the government. Scalia noted that this transformation had already begun with the politicization of the Supreme Court nominations process and even the Circuit Courts of Appeals nominations process. Scalia reminded the crowd that it was only with Felix Frankfurter that Supreme Court nominees began to appear before Congress for nomination hearings. Scalia criticized the highly politicized processes that infected both the Clinton and current Bush administrations, but understood their evolution “because we’re picking our legislators.” That is, as he noted, we are not looking for good lawyers to put on the bench, but rather for people to read things into the Constitution.

Scalia further warned that “there is no constraint to the new rights that can be created under the ‘Living Constitution.’” He criticized substantive due process and noted that its legacy is strong. He rests his criticisms on the current court’s language that it is “not yet prepared” to acknowledge new rights, such as the right to die or grandparent visitation rights. In Scalia’s view, this creates an undesirable uncertainty in the law – as he put it, “Stay tuned.”

Scalia concluded his remarks with a reiteration of his earlier observation that “the whole point of the Bill of Rights” is to protect Americans against the will of the majority. As such, allowing a judge to read anything into the Constitution undermines those early amendments. He claimed that the “Living Constitution” movement had already resulted in the politicization of the confirmation process, and would “ultimately [result in] the inability of judges to protect the individual from the many.”

After a healthy round of applause, Dean Fitts announced that Justice Scalia would take questions. Justice Scalia passed on several questions, including those on the pending Pledge of Allegiance case in the 9th Circuit [Newdow v. U.S. Congress], the New Jersey case regarding the 2002 Senate race to which the Supreme Court denied certiorari [Forrester v. N.J. Dem. Party], and whether the Constitution should be read to allow laws that deny homosexuals the right to vote.

[This description proceeds without mention of those questions and answers]. The first question Scalia faced asked how an Originalist (or a Textualist) would know what the words of the Constitution mean. Scalia responded that there would be uncertainty in any constitutional interpretation theory. While “[he does] not pretend that Originalism is perfect,” Scalia asserted that it does solve “many problems” because it is applicable to the vast majority of cases. He took a contrasting view of Non-Originalism, which he felt provided no guidance on most questions.

Scalia was next asked how he could reconcile his Originalism with the Court’s recent 11th Amendment jurisprudence. Scalia claimed that he was bound in these cases by stare decisis, and that the recent decisions arose out of a line of cases that began in the 1890s [Ed.: Presumably with Hans v. Louisiana]. According to Scalia, “any doctrine [of constitutional interpretation] must be modified by stare decisis.” The key, Scalia explained, was to understand when one should be restrained. In the abortion context, for example, Scalia claimed that there was no reliable way to apply Planned Parenthood v. Casey’s “undue burden” test. He imagined sitting around the table with eight other justices, and admitted that their vote would be based on a personal opinion of whether the burden of a particular abortion-related restriction was “undue.” He contrasted Casey with the First Amendment, which he claimed is “easy to apply.” He argued that a test as amorphous and ambiguous as the “undue burden” test “is not law.”

Not surprisingly, Scalia failed to avoid being asked a question on Bush v. Gore. He was asked whether that decision (and the Supreme Court’s choice to grant certiorari in the first place) achieved Scalia’s feared politicization of the judiciary. Scalia admitted that “no one was happy” that the case came to court, but that such a decision rested with Mr. Gore. Once the choice to litigate was made, Scalia argued, a court would have to resolve the matter, and the question was whether that should be the Supreme Court of the United States or the Florida Supreme Court. Noting that the case presented “serious, non-frivolous constitutional claims,” he questioned “on what basis [the Court could have] turn[ed] it down.”

Scalia was next asked how Originalism would handle Brown v. Board of Education. Scalia called this the “bloody shirt” question, and noted it was usually asked with a bit more fervor than the even-tempered questioner had exhibited. Scalia offered two responses. First, he claimed that he would have joined that unanimous opinion. He explained that he would have agreed with (the first) Justice Harlan’s 14th Amendment jurisprudence from his famous dissent in Plessy v. Ferguson. Second, he claimed that his first answer didn’t matter. Rather, he argued that one can’t base a constitutional theory on occasionally favorable results, since “a stopped clock is right twice a day.” Instead, a Scalia claimed that a theory should be consistent across all cases.

The next question Scalia faced asked how an Originalist would know when the text of the Constitution was too ambiguous to be the sole support of a decision. Scalia responded that such an undertaking was essentially one of judging – that is, even Originalism is not automatic. Scalia argued that such ambiguity does not prove anything “either way” about the validity of Originalism. He noted that there are many ways to achieve a good result, but that Originalism was the most reliable. He admitted that electing a King could benefit our nation, but was sure to note in jest that “we could do great things electing me King.” Not surprisingly, that last remark was met with raucous laughter.

Finally, Justice Scalia was asked about how Originalists and Textualists should apply their views to the legislative histories of statutes. Scalia began his response with an admission that he had likely “lost the battle” against the seductive call of the “Living Constitution.” Nonetheless, Scalia proudly exclaimed that legislative history was a realm that he’s “gonna win,” because “laziness is on [his] side.” He vividly explained how his view that legislative history should not be a consideration in judging, and that such a view allowed him to avoid reading portions of lengthy Supreme Court briefs (this admission was met with both laughter and applause). His object to legislative history, he explained, was one of principle – in his view, it is simple too untrustworthy. That is, looking to Congressional committee reports “written by teenagers” and often times “not read” by many of the committee members themselves is not useful in understanding what Congress meant to do with its legislation. That such an analysis could be useful, Scalia argued, “is a total fiction.”

With regard to his behavior, Justice Scalia was an animated and interesting speaker. Anyone who has watched him on the bench or listened to Supreme Court arguments (or even read the transcripts) knows that Justice Scalia is nothing if not engaging. Whatever one thought of Justice Scalia’s views on constitutional interpretation, it was clear that the crowd thoroughly enjoyed hearing about them.

Wednesday, February 12, 2003

February 12, 2003

Dear Senator Daschle and Senator Leahy:

On behalf of President Bush, I write in response to your letter to the President dated February 11, 2003. In the letter, you renew your previous request for confidential Department of Justice memoranda in which Mr. Estrada provided appeal, certiorari, and amicus recommendations while he was a career attorney in the Office of Solicitor General for four years in the Clinton Administration and one year in the George H.W. Bush Administration. You also request that Mr. Estrada answer certain questions beyond the extensive questions that he already answered appropriately and forthrightly during his Committee hearing and in follow-up written responses.

We respect the Senate's constitutional role in the confirmation process, and we agree that the Senate must make an informed judgment consistent with its traditional role and practices. However, your requests have no persuasive support in the history and precedent of judicial appointments. Indeed, the relevant history and precedent convincingly demonstrate that a new and shifting standard is being applied to Miguel Estrada.

First, as the Department of Justice explained in its letters of June 5, 2002, October 8, 2002, and January 23, 2003, all living former Solicitors General (four Democrats and three Republicans) have strongly opposed your request for Solicitor General memoranda and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. Even more telling, we are informed that the Senate has not requested memos such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department (including the seven nominees who had previously worked in the Solicitor General's office). The few isolated examples you have cited -- in which targeted requests for particular documents about specific issues were accommodated for nominees to positions other than the U.S. Courts of Appeals -- similarly do not support your request here.

Second, as explained more fully below with respect to your request that Mr. Estrada answer additional questions, the only specific question identified in your letter refers to his judicial role models. You claim that Mr. Estrada refused to answer a question on this topic. In fact, in his written responses to Senator Durbin's question on this precise subject that Mr. Estrada submitted three months ago, he cited Justice Anthony Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as judges he admires (he clerked for Justice Kennedy and Judge Kearse), and he further pointed out, of course, that he would seek to resolve cases as he analyzed them "without any preconception about how some other judge might approach the question." Your letter to the President ignores Mr. Estrada's answer to this question. In any event, beyond this one query, your letter does not pose any additional questions to him. Additionally, neither of you has posed any written questions to Mr. Estrada in the more than three months since his all-day Committee hearing. Since the hearing, Mr. Estrada also has met (and continues to meet) with numerous Democrat Senators interested in learning more about his record. Finally, as I will explain below, Mr. Estrada forthrightly answered numerous questions about his judicial approach and views in a manner that matches or greatly exceeds answers demanded of previous appeals court nominees.

With respect, it appears that a double standard is being applied to Miguel Estrada. That is highly unfair and inappropriate, particularly for this well-qualified and well-respected nominee.

I will turn now in more detail to the various issues raised by your letter. I will address them at some length given the importance of this issue and the nature of your requests.

I. Miguel Estrada's Qualifications and Bipartisan Support

Miguel Estrada is an extraordinarily qualified judicial nominee. The American Bar Association, which Senators Leahy and Schumer have referred to as the "gold standard," unanimously rated Estrada "well qualified" for the D.C. Circuit, the ABA's highest possible rating. The ABA rating was entirely appropriate in light of Mr. Estrada's superb record as Assistant to the Solicitor General in the Clinton and George H.W. Bush Administrations, as a federal prosecutor in New York, as a law clerk to Justice Kennedy, and in performing significant pro bono work.

Some who are misinformed have seized on Mr. Estrada's lack of prior judicial experience, but five of the eight judges currently serving on the D.C. Circuit had no prior judicial experience, including two appointees of President Clinton and one appointee of President Carter. Miguel Estrada has tried numerous cases before federal juries, argued many cases in the federal appeals courts, and argued 15 cases before the Supreme Court of the United States. That is a record that few judicial nominees can match. And few lawyers, whatever their ideology or philosophy, have volunteered to represent a death row inmate pro bono before the Supreme Court as did Miguel Estrada.
Mr. Estrada's excellent legal qualifications are all the more extraordinary given his personal history. Simply put, Miguel Estrada is an American success story. He came to this country at age 17 from Honduras speaking little English. Through hard work and dedicated service to the United States, Miguel Estrada has risen to the very pinnacle of the legal profession. If confirmed, he would be the first Hispanic judge to sit on the U.S. Court of Appeals for the D.C. Circuit. Given his record, his background, and his integrity, it is no surprise that Miguel Estrada is strongly supported by the vast majority of national Hispanic organizations. The League of United Latin American Citizens (LULAC), for example, wrote to Senator Leahy to urge Mr. Estrada's confirmation and explain that he "is truly one of the rising stars in the Hispanic community and a role model for our youth." A group of 19 Hispanic organizations, including LULAC and the Hispanic National Bar Association, recently wrote to the Senate urging "on behalf of an overwhelming majority of Hispanics in this country" that "both parties in the U.S. Senate . . . put partisan politics aside so that Hispanics are no longer denied representation in one of the most prestigious courts in the land."

The current effort to filibuster Mr. Estrada's nomination is particularly unjustified given that those who have worked with Miguel -- including prominent Democrat lawyers whom you know well -- strongly support his confirmation. For example, Ron Klain, who served as a high-ranking adviser to former Vice President Gore and former Chief Counsel to the Senate Judiciary Committee, wrote: "Miguel is a person of outstanding character, tremendous intellect, and with a deep commitment to the faithful application of precedent. . . . [T]he challenges that he has overcome in his life have made him genuinely compassionate, genuinely concerned for others, and genuinely devoted to helping those in need."

President Clinton's Solicitor General, Seth Waxman, wrote: "During the time Mr. Estrada and I worked together, he was a model of professionalism and competence. . . . In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views -- or indeed that they reflected any consideration other than the long-term interests of the United States. I have great respect both for Mr. Estrada's intellect and for his integrity."

A bipartisan group of 14 former colleagues in the Office of the Solicitor General at the U.S. Department of Justice wrote: "We hold varying ideological views and affiliations that range across the political spectrum, but we are unanimous in our conviction that Miguel would be a fair and honest judge who would decide cases in accordance with the applicable legal principles and precedents, not on the basis of personal preferences or political viewpoints." One former colleague, Richard Seamon, wrote that he is a pro-choice, lifelong Democrat with self-described "liberal views on most issues" who said he would "consider it a disgrace" if Mr. Estrada is not confirmed.

Similarly, Leonard Joy, head of the Federal Defender Division of the Legal Aid Society of New York, wrote that "Miguel would make an excellent Circuit Court Judge. He is as fine a lawyer as I have met and, on top of all his intellectual abilities and judgment he would bring to bear, he would bring a desirable diversity to the Court. I heartily recommend him."

Beyond the extensive personal testimony from those who worked side-by-side with him for many years, the performance reviews of Miguel for the years that he worked in the Office of Solicitor General gave him the highest possible rating of "outstanding" in every possible category. The reviews stated that Miguel:
"states the operative facts and applicable law completely and persuasively, with record citations, and in conformance with court and office rules, and with concern for fairness, clarity, simplicity, and conciseness."

"[i]s extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to others."

"[a]ll dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner."

"[a]ll briefs, motions or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies, or fails to discuss and analyze relevant authorities."

"[i]s constantly sought for advice and counsel. Inspires co-workers by example."
In the two years that Miguel Estrada and Paul Bender worked together, Mr. Bender signed those reviews. These employment reviews thus call into serious question some press reports containing a negative comment from Mr. Bender about Mr. Estrada's temperament (which is the only negative comment made by anyone who actually knows Mr. Estrada). Just as important, President Clinton's Solicitor General Seth Waxman expressly refuted Mr. Bender's statement.

In sum, based on his experience, his intellect, his integrity, and his bipartisan support, Miguel Estrada should be confirmed promptly.

II. The Senate's Role

President Bush nominated Miguel Estrada nearly two years ago on May 9, 2001. As explained above, he is well-qualified and well-respected. By any traditional measure that the Senate has used to evaluate appeals court nominees, Miguel Estrada should have been confirmed long ago. Your letter and public statements indicate, however, that you are applying both a new standard and new tactics to this particular nominee.

As to the standard, the Senate has a very important role in the process, but the Senate's traditional approach to appeals court nominees, and the approach envisioned by the Constitution's Framers, is far different from the standard that you now seek to apply. Senator Biden stated the traditional approach in 1997: "Any person who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as they are in a position where they are in the general mainstream of American political life, and they have not committed crimes of moral turpitude, and have not, in fact, acted in a way that would shed a negative light on the court." Congressional Record, March 19, 1997. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Federalist No. 76. It was anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." No. 76.

As to tactics, you have indicated that some Senate Democrats intend to filibuster to prevent a vote on this nominee. As you know, there has never been a successful filibuster of a court of appeals nominee. Only a few years ago, Senator Leahy and other Democrat Senators expressly agreed with then-Governor Bush that every judicial nominee was entitled to an up-or-down floor vote within a reasonable time. On October 3, 2000, for example, Senator Leahy stated:
Governor Bush and I, while we disagree on some issues, have one very significant issue on which we agree. He gave a speech a while back and criticized what has happened in the Senate where confirmations are held up not because somebody votes down a nominee but because they cannot ever get a vote. Governor Bush said: You have the nominee. Hold the hearing. Then, within 60 days, vote them up or vote them down. Don't leave them in limbo. Frankly, that is what we are paid to do in this body. We are paid to vote either yes or no -- not vote maybe. When we hold a nominee up by not allowing them a vote and not taking any action one way or the other, we are not only voting 'maybe,' but we are doing a terrible disservice to the man or woman to whom we do this.
Senator Daschle similarly stated on October 5, 1999, that "[t]he Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. An up or down vote, that is all we seek for Berzon and Paez. And after years of waiting, they deserve at least that much."

In his East Room speech of October 30, 2002, President Bush reiterated that every judicial nominee deserves a timely up-or-down floor vote in the Senate, no matter who is President or which party controls the Senate. Contrary to President Bush's attempts at permanent reform to bring order to the process, your current effort to employ a filibuster and block an up-or-down vote on the Estrada nomination may significantly exacerbate the cycle of bitterness and recrimination that President Bush has sought to resolve on a bipartisan basis. We fear that the damage caused by a filibuster could take many years to undo. To continue on this path would also be, in Senator Leahy's words, "a terrible disservice" to Mr. Estrada. We urge you to reconsider this extraordinary action, to end the filibuster of Mr. Estrada's nomination, and to allow the full Senate to vote up or down.

III. Request for Confidential Solicitor General Memos

You have suggested that Mr. Estrada's background, experience, and support are insufficient to assess his suitability for the D.C. Circuit. You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: "Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests -- a cost that also would be borne by Congress itself. . . . Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process."

It bears mention that the interest asserted here is that of the United States, not the personal interest of Mr. Estrada. Indeed, Mr. Estrada himself testified that "I have not opposed the release of those records. . . . I am exceptionally proud of every piece of legal work that I have done in my life. If it were up to me as a private citizen, I would be more than proud to have you look at everything that I have done for the government or for a private client."

The history of Senate confirmations of nominees who had previously worked in the Department of Justice makes clear that an unfair double standard is being applied to Miguel Estrada's nomination. Since the beginning of the Carter Administration in 1977, the Senate has approved 67 United States Court of Appeals nominees who previously had worked in the Department of Justice. Of those 67 nominees, 38 had no prior judicial experience, like Miguel Estrada. The Department of Justice's review of those nomination records disclosed that in none of those cases did the Department of Justice produce internal deliberative materials created by the Department. In fact, the Department's review disclosed that the Senate did not even request such materials for a single one of these 67 nominees.

Of this group of 67 nominees, seven were nominees who had worked as a Deputy Solicitor General or Assistant to the Solicitor General. These seven nominees, nominated by Presidents of each party and confirmed by Senates controlled by each party, included Samuel Alito, Danny Boggs, William Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, and Raymond Randolph.

The five isolated historical examples you have cited do not support your current request. In each of those five cases, the Committee made a targeted request for specific information primarily related to allegations of misconduct or malfeasance identified by the Committee. Even in those isolated cases, the vast majority of deliberative memoranda written by those nominees were neither requested nor produced. With respect to Judge Bork's nomination, for example, the Committee received access to certain particular memoranda (many related to Judge Bork's involvement in Watergate-related issues). The vast majority of memoranda authored by Judge Bork were never received. With respect to Judge Trott, the Committee requested documents unrelated to Judge Trott's service to the Department. So, too, in the three other examples you cite, the Committee requested specific documents primarily related to allegations of misconduct or malfeasance identified by the Committee. Of course, no such allegations have been made in the case of Mr. Estrada.

In sum, the examples you have cited only highlight the lack of precedent for the current request. As the Justice Department has explained to you previously, the existence of a few isolated examples where the Executive Branch on occasion accommodated a Committee's targeted requests for very specific information primarily related to allegations of misconduct does not in any way alter the fundamental and long-standing principle that memos from the Office of Solicitor General -- and deliberative Department of Justice memoranda more broadly -- must remain protected in the confirmation context so as to maintain the integrity of the Executive Branch's decisionmaking process. That is a fundamental principle that has been followed irrespective of the party that controls the White House and the Senate.

Your continued requests for these memoranda have provoked a foreseeable and inevitable conflict that, in turn, has been cited as a basis for obstructing a vote on Mr. Estrada's nomination. Respectfully, the conflict is unnecessary because your desire to assess the nominee can be readily accommodated in many ways other than intruding into and severely damaging the deliberative process of the Office of Solicitor General. For example, you can review Mr. Estrada's written briefs and oral arguments both as an attorney for the United States and in private practice. As you know, those documents are publicly available and easily accessible; that said, we would be pleased to facilitate your access to them. (Mr. Estrada's hearing transcript suggests that no Democrat Member of the Committee had read Mr. Estrada's many dozens of Solicitor General merits briefs, certiorari petitions, and opposition briefs or the transcripts of his 14 oral arguments when he represented the United States.) You also may consider the opinions of others who served in the Office at the same time (discussed above) and examine the nominee's written performance reviews (also discussed above). There is more than ample information for you to assess Mr. Estrada's qualifications and suitability for the D.C. Circuit based on the traditional standards the Senate has employed.

It also is important to recognize that political appointees of President Clinton have read virtually all of the memoranda in question -- namely, the Democrat Solicitors General Drew Days, Walter Dellinger, and Seth Waxman. None of those three highly respected Democrat lawyers has expressed any concern whatever about Mr. Estrada's nomination. Indeed, Mr. Waxman wrote a letter of strong support, and Mr. Days made public statements in support of Mr. Estrada.

In sum, the historical record and past precedent convincingly demonstrate that this request creates and applies an unfair double standard to Miguel Estrada.

IV. Request that Miguel Estrada Answer Additional Questions

Your letter also suggests that Miguel Estrada should answer certain questions that he allegedly did not answer in his hearing. To begin with, we do not know what your specific questions are. In addition, this request frankly comes as a surprise given that (i) Senator Schumer chaired the hearing on Mr. Estrada, (ii) the hearing lasted an entire day, (iii) Senators at the all-day hearing asked numerous far-reaching questions that Mr. Estrada answered forthrightly and appropriately, and (iv) only two of the 10 Democrat Senators then on the Committee even submitted any follow-up written questions, and they submitted only a few questions (in marked contrast to other nominees who received voluminous follow-up questions).

It also bears mention that Mr. Estrada has personally met with a large number of Democrat Senators, including Senators Landrieu, Lincoln, Bill Nelson, Ben Nelson, Leahy, Feinstein, Kohl, and Breaux; is scheduled to meet with Senator Carper; and would be pleased to meet with additional Senators.

The only specific question your letter identifies refers to Mr. Estrada's judicial role models, and you claim that he refused to answer a question on this topic. In fact, in Mr. Estrada's written responses to Senator Durbin's question on this precise subject, Mr. Estrada cited Justice Anthony Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as judges he admires, and he further pointed out, of course, that he would seek to resolve cases as he analyzed them "without any preconception about how some other judge might approach the question."

In our judgment, moreover, Mr. Estrada answered the Committee's questions in a manner that was both entirely appropriate and entirely consistent with the approach that judicial nominees of Presidents of both parties have taken for many years. Your suggestions to the contrary do not square with the hearing record or traditional practice.

A. Judicial Ethics and Traditional Practice

In assessing your request that Miguel Estrada did not answer appropriate questions, we begin with rules of judicial ethics that govern prospective nominees. Canon 5A(3)(d) provides that prospective judges "shall not . . . make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court" (emphasis added). Justice Thurgood Marshall made the point well in 1967 when asked about the Fifth Amendment: "I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed and sit on the Court, when a Fifth Amendment case comes up, I will have to disqualify myself." Lloyd Cutler, who served as Counsel to President Carter and President Clinton, has stated that "candidates should decline to reply when efforts are made to find out how they would decide a particular case."

In 1968, in the context of the Justice Abe Fortas' nomination to be Chief Justice, the Senate Judiciary Committee similarly stated: "Although recognizing the constitutional dilemma which appears to exist when the Senate is asked to advise and consent on a judicial nominee without examining him on legal questions, the Committee is of the view that Justice Fortas wisely and correctly declined to answer questions in this area. To require a Justice to state his views on legal questions or to discuss his past decisions before the Committee would threaten the independence of the judiciary and the integrity of the judicial system itself. It would also impinge on the constitutional doctrine of separation of powers among the three branches of Government as required by the Constitution." S. Exec. Rep. No. 8, 90th Cong. 2d Sess. 5 (1968).

Even in the context of a Supreme Court confirmation hearing, Senator Kennedy defended Sandra Day O'Connor's refusal to discuss her views on abortion: "It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single-issue interest group." Nomination of Sandra O'Connor: Hearings Before the Senate Comm. on the Judiciary on the Nomination of Judge Sandra Day O'Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States, 97th Cong. 6 (1981) (statement of Sen. Kennedy).

Justice Ruth Bader Ginsburg likewise declined to answer certain questions: "Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously." Similarly, Justice John Paul Stevens stated in his hearing: "I really don't think I should discuss this subject generally, Senator. I don't mean to be unresponsive but in all candor I must say that there have been many times in my experience in the last five years where I found that my first reaction to a problem was not the same as the reaction I had when I had the responsibility of decisions and I think that if I were to make comments that were not carefully thought through they might be given significance that they really did not merit."

Justice Ginsburg described the traditional practice in a case decided last year: "In the context of the federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be 'on interest' to the President and the Senate . . . . But in accord with a longstanding norm, every Member of this Court declined to furnish such information to the Senate, and presumably to the President as well." Republican Party of Minnesota v. White, 122 S. Ct. 2528, 2552 n.1 (2002) (Ginsburg, J., dissenting) (emphasis added). Justice Ginsburg added that this adherence to this "longstanding norm" was "crucial to the health of the Federal Judiciary." Id. In his majority opinion, Justice Scalia did not take issue with that description and added: "Nor do we assert that candidates for judicial office should be compelled to announce their views on disputed legal issues." Id. at 2539 n.11 (emphasis in original).

In some recent hearings, including Mr. Estrada's, Senator Schumer has asked that nominees identify particular Supreme Court cases of the last few decades with which they disagree. But the problems with such a question and answer were well stated by Justice Stephen Breyer. As Justice Breyer put it, "Until [an issue] comes up, I don't really think it through with the depth that it would require. . . . So often, when you decide a matter for real, in a court or elsewhere, it turns out to be very different after you've become informed and think it through for real than what you would have said at a cocktail party answering a question." 34 U.C. Davis L. Rev. 425, 462.

Senator Schumer also has asked nominees how they would have ruled in particular Supreme Court cases. Again, a double standard is being applied. The nominees of President Clinton did not answer such questions. For example, Richard Tallman, a nominee with no prior judicial service who would now serves on the Ninth Circuit, not only would not answer how he would have ruled as a judge in Roe v. Wade -- but even how he would have ruled in Plessy v. Ferguson, the infamous case that upheld the discredited and shameful "separate but equal" doctrine. So, too, in the hearing on President Clinton's nomination of Judges Barry and Fisher, Senator Smith asked whether the nominees would have voted for a constitutional right to abortion before Roe v. Wade. Chairman Hatch interrupted Senator Smith to say "that is not a fair question to these two nominees because regardless of what happened pre-1973, they have to abide by what has happened post-1973 and the current precedents that the Supreme Court has."

B. Answers by Miguel Estrada

Miguel Estrada answered the Committee's questions forthrightly and appropriately. Indeed, Miguel Estrada was more expansive than many judicial nominees traditionally have been in Senate hearings, and he was asked a far broader range of questions than many previous appeals court nominees were asked. We will catalogue here a select sample of his answers.

Unenumerated rights, privacy, and abortion

When asked by Senator Edwards about the Constitution's protection for rights not enumerated in the Constitution, Mr. Estrada replied: "I recognize that the Supreme Court has said [on] numerous occasions in the area of privacy and elsewhere that there are unenumerated rights in the Constitution, and I have no view of any sort, whether legal or personal, that would hinder me from applying those rulings by the court. But I think the court has been quite clear that there are a number of unenumerated rights in the Constitution. In the main, the court has recognized them as being inherent in the right of substantive due process and the liberty clause of the Fourteenth Amendment."
When asked by Senator Feinstein whether the Constitution encompasses a right to privacy and abortion, Mr. Estrada responded, "The Supreme Court has so held, and I have no view of any nature whatsoever, whether it be legal, philosophical, moral, or any other type of view that would keep me from applying that case law faithfully." When asked whether Roe v. Wade was "settled law," Mr. Estrada replied, "I believe so."

General Approach to Judging

When asked by Senator Edwards about judicial review, Mr. Estrada explained: "Courts take the laws that have been passed by you and give you the benefit of understanding that you take the same oath that they do to uphold the Constitution, and therefore they take the laws with the presumption that they are constitutional. It is the affirmative burden of the plaintiff to show that you have gone beyond your oath. If they come into court, then it is appropriate for courts to undertake to listen to the legal arguments -- why it is that the legislature went beyond [its] role as a legislat[ure] and invaded the Constitution."

Mr. Estrada stated to Senator Edwards that there are 200 years of Supreme Court precedent and that it is not the case that "the appropriate conduct for courts is to be guided solely by the bare text of the Constitution because that is not the legal system that we have."

When asked by Senator Edwards whether he was a strict constructionist, Mr. Estrada replied that he was "a fair constructionist" -- meaning that "I don't think that it should be the goal of courts to be strict or lax. The goal of courts is to get it right. . . . It is not necessarily the case in my mind that, for example, all parts of the Constitution are suitable for the same type of interpretative analysis. . . . [T]he Constitution says, for example, that you must be 35 years old to be our chief executive. . . . There are areas of the Constitution that are more open-ended. And you adverted to one, like the substantive component of the due process clauses, where there are other methods of interpretation that are not quite so obvious that the court has brought to bear to try to bring forth what the appropriate answer should be."

When Senator Kohl asked him about environmental statutes, for example, Mr. Estrada explained that those statutes come to court "with a strong presumption of constitutionality."

In response to Senator Leahy, Mr. Estrada described the most important attributes of a judge: "The most important quality for a judge, in my view Senator Leahy, is to have an appropriate process for decisionmaking. That entails having an open mind. It entails listening to the parties, reading their briefs, going back beyond those briefs and doing all of the legwork needed to ascertain who is right in his or her claims as to what the law says and what the facts [are]. In a court of appeals court, where judges sit in panels of three, it is important to engage in deliberation and give ear to the views of colleagues who may have come to different conclusions. And in sum, to be committed to judging as a process that is intended to give us the right answer, not to a result. And I can give you my level best solemn assurance that I firmly think I do have those qualities or else I would not have accepted the nomination."

In response to Senator Durbin, Miguel Estrada stated that "the Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains."

Mr. Estrada indicated to Senator Durbin that he admired the judges for whom he clerked, Justice Kennedy and Judge Kearse, as well as Justice Lewis Powell. Mr. Estrada stated to Senator Durbin that "I can absolutely assure the Committee that I will follow binding Supreme Court precedent until and unless such precedent has been displaced by subsequent decisions of the Supreme Court itself."

In response to Senator Grassley, Mr. Estrada stated: "When facing a problems for which there is a not a decisive precedent from a higher court, my cardinal rule would be to seize aid from anyplace where I could get it. Depending on the nature of the problem, that would include related case law in other areas that higher courts had dealt with that had had some insights to teach with respect to the problem at hand. It could include the history of the enactment, including in the case of a statute legislative history. It could include the custom and practice under any predecessor statute or document. It could include the views of academics to the extent that they purport to analyze what the law is instead of -- instead of prescribing what it should be. And in sum, as Chief Justice Marshall once said, to attempt not to overlook anything from which aid might be derived."

In response to Senator Sessions, Estrada stated: "I am very firmly of the view that although we all have views on a number of subjects from A to Z, the first duty of a judge is to self-consciously put that aside and look at each case by starting withholding judgment with an open mind and listen to the parties. So I think that the job of a judge is to put all of that aside, and to the best of his human capacity to give a judgment based solely on the arguments and the law."

In response to Senator Sessions, Mr. Estrada stated that "I will follow binding case law in every case. . . . I may have a personal, moral, philosophical view on the subject matter. But I undertake to you that I would put all that aside and decide cases in accordance with binding case law and even in accordance with the case law that is not binding but seems constructive on the area, without any influence whatsoever from any personal view I may have about the subject matter."

Miranda/Stare Decisis

Mr. Estrada stated that United States v. Dickerson -- a case raising the question whether Miranda should be overruled -- reflected a "reasonable application of the doctrine of stare decisis. In my view, it is rarely appropriate for the Supreme Court to overturn one of its own precedents."

Affirmative Action

With respect to affirmative action, Mr. Estrada responded to Senator Kennedy that "any policy views I might have as a private citizen on the subject of affirmative action would not enter into how I would approach any case that comes before me as a judge. Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), if a government program creates a racial classification, it will be subject to strict scrutiny. Whether the program survives that sort of scrutiny will often involve a highly contextual and fact-specific inquiry into the nature of the justifications asserted by the government and the fit between those justifications and the classification at issue. Adarand and similar cases provide the framework that I would be required to apply, and would apply, in considering these issues as a judge."

Asked by Senator Leahy about the strict scrutiny test, Mr. Estrada replied, "the Supreme Court in the Adarand case stated, as a general rule, that the consideration of race is subject to strict scrutiny. That means that though it may be used in some cases, it has to be justified by a compelling state interest. And with respect to the particular context, there must be a fairly fact-bound individual assessment of the fit between the interest that is being asserted and the category being used. That is just another way of saying that it is a very fact-intensive analysis in the context of a specific program and in the context of the justifications that are being offered in support of the program."

Congressional Authority

With respect to the outer limits of Congress' power to confer authority on other governmental bodies, Miguel responded to Senator Kennedy that the Supreme Court has said that "particular factual context is significant in analyzing the appropriateness of a particular delegation. . . . Of course, the fact that the Supreme Court only rarely has struck down statutes on this ground suggests that the Court has been quite deferential to congressional judgments about the types of delegations that reasonably might be needed to carry on the business of government."

When Senator Kohl asked Mr. Estrada about the 1995 Lopez case concerning the scope of Congress' power to regulate, Mr. Estrada pointed out that he had argued in a companion case "for a very expansive view of the power to Congress to pass statutes under the Commerce Clause and have them be upheld by the court. . . . Lopez has given us guidance on when it is appropriate for the court to exercise the commerce power. It is binding law and I would follow it."


With respect to the fact that the President had noted Miguel's ethnicity, Miguel responded to Senator Kennedy: "The President is the leader of a large and diverse country, and it is accordingly appropriate for him, in exercising his constitutional nomination and appointment powers, to select qualified individuals who reflect the breadth and diversity of our Nation."

With respect to the Democrat Congressional Hispanic Caucus's criticism of him, Miguel responded to Senator Kennedy that "I strongly disagree, however, with the Congressional Hispanic Caucus' view that I lack an understanding of the role and importance of courts in protecting the legal rights of minorities, of the values and mores of Latino culture, or the significance of role models for minority communities."

Racial Discrimination

With respect to race discrimination, Mr. Estrada stated in response to Senator Kennedy: "I take a backseat to no one in my abhorrence of race discrimination in law enforcement or anything else."

Senator Feingold asked Mr. Estrada whether he believed that racial profiling and racially motivated law enforcement misconduct are problems in this country today. Mr. Estrada replied, "I am -- I will once again emphasize I'm unalterably opposed to any sort of race discrimination in law enforcement, Senator, whether it's called racial profiling or anything else. . . . I know full well that we have real problems with discrimination in our day and age."

Senator Leahy asked Mr. Estrada about whether statistical evidence of discriminatory impact is relevant in establishing discrimination. Mr. Estrada replied: "I am not a specialist in this area of the law, Senator Leahy, but I am aware that there is a line of cases, beginning with the Supreme Court's decision in Griggs, that suggests that in appropriate cases that [such evidence] may be appropriate. . . . I do understand that there is a major area of law that deals with how you prove and try disparate-impact cases."

Congressional Authority to Regulate Firearms

Senator Feinstein asked whether Congress may legislate in the area of dangerous firearms, and Mr. Estrada responded that the Supreme Court had ruled that "if the government were to prove that the firearm had at any time in its lifetime been in interstate commerce even if that had nothing to do with the crime at issue, that that would be an adequate basis for the exercise of Congress' power."

Right to Counsel

Senator Edwards asked about Gideon v. Wainwright, the Supreme Court case guaranteeing the right to counsel for poor defendants who could not afford counsel. Although Senator Edwards appeared to question the reasoning in that landmark case, Mr. Estrada responded that "I frankly have always taken it as a given that that's -- the ruling in the case."

C. Answers by President Clinton's Nominees

Your criticism of Miguel Estrada's testimony creates a double standard. You did not require nominees of President Clinton to answer questions of this sort (keeping in mind that you have not identified what your additional questions to Mr. Estrada are). President Clinton's appeals court nominees routinely testified without discussing their views of specific issues or cases. A few select examples, including of several nominees who had no prior judicial experience, illustrate the point. (Please note that these are isolated examples; there are many more we can provide if necessary.)

Merrick Garland (no prior judicial experience). In the nomination of Merrick Garland to the D.C. Circuit, Senator Specter asked him: "Do you favor, as a personal matter, capital punishment?" Judge Garland replied only that he would follow Supreme Court precedent: "This is really a matter of settled law now. The Court has held that capital punishment is constitutional and lower courts are to follow that rule." Senator Specter also asked him about his views of the independent counsel statute's constitutionality, and Judge Garland responded: "Well, that, too, the Supreme Court in Morrison v. Olson upheld as constitutional, and, of course, I would follow that ruling." Judge Garland did not provide his personal view of either subject.

Judith Rogers. In the hearing on Judge Judith Rogers' nomination to the D.C. Circuit, Judge Rogers was asked by Senator Cohen about the debate over an evolving Constitution. Judge Rogers responded: "My obligation as an appellate judge is to apply precedent. Some of the debates which I have heard and to which I think you may be alluding are interesting, but as an appellate judge, my obligation is to apply precedent. And so the interpretations of the Constitution by the U.S. Supreme Court would be binding on me." She then was asked how she would rule in the absence of precedent and responded: "When I was taking my master's in judicial process at the University of Virginia Law School, one of the points emphasized was the growth of our common law system based on the English common law judge system. And my opinions, I think if you look at them, reflect that where I am presented with a question of first impression, that I look to the language of whatever provision we are addressing, that I look to whatever debates are available, that I look to the interpretations by other Federal courts, that I look to the interpretations of other State courts, and it may be necessary, as well, to look at the interpretations suggested by commentators. And within that framework, which I consider to be a discipline, that I would reach a view in a case of first impression." Finally, Judge Rogers was asked her view of the three-strikes law and stated: "As an appellate judge, my obligation is to enforce the laws that Congress passes or, where I am now, that the District of Columbia Council passes." Judge Rogers did not provide her personal view of these subjects.

Marsha Berzon (no prior judicial experience). Senator Smith asked her views on Roe v. Wade and whether "an unborn child is a human being." Judge Berzon stated: "[M]y role as a judge is not to further anything that I personally believe or don't believe, and I think that is the strength of our system and the strength of our appellate system. The Supreme Court has been quite definitive quite recently about the applicable standard, and I absolutely pledge to you that I will follow that standard as it exists now, and if it is changed, I will follow that standard. And my personal views in this area, as in any other, will have absolutely no effect." When Senator Smith probed about their personal views on abortion and Roe v. Wade, Chairman Hatch interrupted: "I don't know how they can say much more than that at this point in this meeting."

Richard Tallman (no prior judicial experience). In response to written questions, Judge Tallman explained that "[j]udicial nominees are limited by judicial ethical considerations from answering any question in a manner that would call for an 'advisory opinion' as the courts have defined it or that in effect ask a nominee to suggest how he or she would rule on an issue that could foreseeably require his or her attention in a future case or controversy after confirmation." He was asked how he would have ruled in Plessy v. Ferguson. He stated: "It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and supporting legal authorities that were applicable at that time." He gave the same response when asked how he would have ruled on Roe v. Wade. When asked his personal view on abortion, he wrote: "I hold no personal views that would prevent me from doing my judicial duty to follow the precedent set down by the Supreme Court." He gave the same answer about the death penalty.

Kim Wardlaw. In the hearing on Judge Kim Wardlaw's nomination to the Ninth Circuit, Judge Wardlaw was asked about the constitutionality of affirmative action. She stated (in an answer similar to Miguel Estrada's answer to the same question): "The Supreme Court has held that racial classifications are unconstitutional unless they are narrowly tailored to meet a compelling governmental interest."

Maryanne Trump Barry. In the hearing on Judge Maryanne Trump Barry's nomination to the Third Circuit, Senator Smith asked for her personal opinion on whether "an unborn child at any stage of the pregnancy is a human being." Judge Barry responded: "Casey is the law that I would look at. If I had a personal opinion -- and I am not suggesting that I do -- it is irrelevant because I must look to the law which binds me."

Raymond Fisher. In the hearing on Judge Raymond Fisher's nomination to the Ninth Circuit, Senator Sessions asked Judge Fisher's own personal views on whether the death penalty was constitutional. Judge Fisher responded that "My view, Senator, is that, as you indicated, the Supreme Court has ruled that the death penalty is constitutional. As a lower appellate court judge, that is the law that I am governed by. I don't want in my judicial career, should I be fortunate enough to have one, to inject my personal opinions into whether or not I follow the law. I believe that the precedent of the Supreme Court is binding and that is what my function is."

V. Conclusion

Miguel Estrada is a well-qualified and well-respected judicial nominee who has very strong bipartisan support. Based on our reading of history, we believe that you have ample information about this nominee and have had more than enough time to consider questions about his qualifications and suitability. We urge you to stop the unfair treatment, end the filibuster, allow an up-or-down vote, and vote to confirm Mr. Estrada.



Alberto R. Gonzales
Counsel to the President
The Honorable Thomas A. Daschle
The Honorable Patrick Leahy

Copy: The Honorable Bill Frist
The Honorable Orrin Hatch