How Appealing Extra

How Appealing Extra

Wednesday, March 19, 2003

U. S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General
Washington, D.C. 20530

March 18, 2003

The Honorable Tom Daschle
Minority Leader
United States Senate
Washington, D.C. 20510

Dear Mr. Leader:

I write to correct a significant and recurring misstatement of fact regarding the nomination of Miguel Estrada, which has been repeated several times on the Senate floor in the past several weeks. As noted below, several Democrat Senators have asserted or implied their belief that the White House and the Department of Justice reviewed Mr. Estrada's appeal, certiorari and amicus recommendations authored during his tenure in the Bush and Clinton Solicitor General's Offices before deciding whether to nominate him to the D.C. Circuit, and that the decision not to disclose these memoranda is based on the Administration's knowledge of their contents. Nothing could be further from the truth. Despite the fact that Counsel to the President Alberto Gonzales explained in a February 24th letter to Senator Schumer that "[n]o one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001," Senators continue to repeat this allegation, which warrants this additional response. An identical letter will be sent to Majority Leader Frist.

Because the professional opinions of attorneys in the Solicitor General's office are--and always have been--confidential, no one in the White House, the Department of Justice or anywhere else in the Executive Branch reviewed these privileged documents--not before Mr. Estrada's nomination on May 9, 2001, and not since then. Unfortunately, the mistaken notion that the Administration has reviewed Mr. Estrada's memoranda has grown rapidly from speculation to rumor to purported fact. In order that your colleagues might have the most accurate information available during your deliberations on Mr. Estrada's nomination, we wish to point out specific misstatements and erroneous assumptions on this issue and to set the record straight.

In a February 12, 2003, floor speech, Senator Leahy speculated that the Administration knows what is in Mr. Estrada's confidential memoranda:
Regarding the document request related to Mr. Estrada's nomination, he has told both Senator Hatch and myself, as well as several Members of the Senate, that he is perfectly willing to show us his writings and respond to them and answer questions about them, but he has been told by the administration that he cannot: the administration, however, would review those writings. They are the only ones who know whether this direct evidence of his views, the interpretation of law, is accurate or misleading--they are the only ones who have access to it and they say, basically: Trust us.

Congressional Record, Feb. 12, 2003, at S2251
Senator Durbin elevated the speculation to a conclusion on February 26:
Mr. Gonzales in the White House said, no, we will not consider producing anything. It leads Members to conclude on this side of the aisle that there is something very damaging in these materials that they do not want disclosed. It is the only conclusion you can draw. ..this White House, tentative and concerned about whether or not Miguel Estrada has said some things that could jeopardize his nomination, refuses to disclose.

Congressional Record, Feb. 26, 2003, at S2756.
Several days later, Senator Schumer repeated the mistaken assumption that the Administration has reviewed Mr. Estrada's memoranda:
Why won't Mr. Estrada or the administration--which is his sponsor, his mentor--in this particular situation why won't he give up these documents? I will tell you what most people think when they hear about it. And I have talked to my constituents, the few who ask me about this. They say he is hiding something. Do I know he is hiding something? Absolutely not. I have not seen the documents. But I tell you one thing: The great lengths that the administration and my colleagues on the other side have gone to not give up these documents makes one suspect there is something there they do not want people to see. So the documents are crucial.

Congressional Record, Mar. 4, 2003, at S3064.
Senator Kennedy extended the error when he suggested that the Administration reviewed Mr. Estrada's memoranda in the selection and vetting process prior to nomination:
We certainly have the obligation to do so when the Executive Branch prevents us from exercising our assigned constitutional powers of advice and consent by depriving us of any access to the only documents which might tell us what kind of a judge a nominee will be--the very documents which the President's lawyers used to select and vet the nominee.

Congressional Record, Mar. 1, 2003, at S3434.
In a March 13, 2003, floor speech, Senator Leahy completes the cycle of misstatements when he asserted that the Administration reviewed Mr. Estrada's memoranda in deciding whether to nominate Mr. Estrada.
The real double standard in the matter of the Estrada nomination is that the President selected Mr. Estrada in large part based upon his 4 1/2 years of work in the Solicitor General's Office, as well as for his ideological views. The administration undoubtedly knows what those views are and have seen those work papers. They know what he did. They picked him based on that, but they said even though we picked him based on that, we do not want the Senate to know what it was. We in the Senate cannot read his work, the work papers that would shed the most light on why this 41-year-old should have a lifetime seat on the Nation's second highest court.

We are to a point where the White House simply says, trust us, we know what he wrote and how he thinks and will make decisions, but we do not want you to know what he wrote, just rubberstamp him.

. . . . There seems to be a perversion to require the Senate to stumble in the dark about Mr. Estrada's views when he shared these views quite freely with others, and when the administration selected him for this high office based on these views.

Congressional Record, Mar. 13, 2003, at S3671
These assertions are simply wrong. First, each statement is based on the fundamentally erroneous premise that officials in this Administration have seen Mr. Estrada's memoranda. Let me assure you unequivocally-and permanently put to rest any misunderstanding--that at no time has this Department of Justice or the White House ever reviewed the memoranda that Miguel Estrada wrote during his tenure in the Solicitor General's office.

Second, the statements above mistakenly suggest that the Department of Justice has declined to release Mr. Estrada's memoranda because of concerns over their content. In reality, as we have explained, the Department has chosen to keep these documents confidential for the reason articulated by all seven living former Solicitors General--including four Democrats: "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."

Thank you for allowing me to set the record straight on this important point. I appreciate the opportunity to assure you and your colleagues that we in the Administration have never examined Miguel Estrada's confidential memoranda. I hope that by clearing up this misunderstanding, we will have taken an important step toward ending the filibuster of Mr. Estrada--the first filibuster of a lower-court nominee in American history--and allow the bipartisan majority of Senators who support Mr. Estrada to vote on his confirmation.



Jamie E. Brown
Acting Assistant Attorney General

cc: The Honorable Orrin Hatch
The Honorable Patrick Leahy
The Honorable Edward Kennedy
The Honorable Charles Schumer
The Honorably Richard Durbin
The Honorable Alberto R. Gonzales, Counsel to the President

Monday, March 10, 2003

Follow-up Questions for Miguel Estrada
Senator Blanche Lincoln

1. Is diversity a factor that an employer or a school could take into consideration?

RESPONSE: The federal courts have a long and distinguished history of ensuring equal opportunities for all persons irrespective of race, sex or creed, and in discharging their duties in this regard they have contributed significantly to the progress our Nation has made in the last 40 years in taking full advantage of the diversity of our citizens.

Diversity is a factor that employers and schools may properly take into consideration, except when it centers on considerations of race or sex that amount to unlawful discrimination. With respect to public employers and universities, because of the constitutional requirement of equal protection, racial classifications are viewed with disfavor and are presumptively unlawful. Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), a government program that creates a racial classification must be subjected to “strict scrutiny.” That means that such a program may be upheld only if the classification is needed to further a compelling governmental interest and is “narrowly tailored” to achieve that end. See also Miller v. Johnson, 515 U.S. 900, 904 (1995) (“[r]acial and ethnic distinctions of any sort are inherently suspect and . . . call for the most exacting judicial scrutiny”); Adarand, 515 U.S. at 236 (“Because racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classifications be clearly identified and unquestionably legitimate”).

As is apparent from the nature of the strict scrutiny test—which calls for 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 racial classification at issue—it would be difficult to say, as a general rule, that employers or schools may or may not utilize racial classifications irrespective of the particular circumstances at issue. Although the equal protection analysis that applies to classifications based on sex (requiring that the classification serve “important,” rather than “compelling,” objectives and that it be “substantially related,” rather than “narrowly tailored,” to those objectives, see United States v. Virginia, 518 U.S. 515, 533 (1996)), is somewhat more lenient than the analysis applicable to racial classifications, here, too, the constitutional analysis is by necessity contextual and does not lend itself to broad generalizations.

With respect to private employers, the relevant Supreme Court precedents suggest that race and sex may be taken into account, in some circumstances, in certain employment decisions. In Steelworkers v. Weber, 443 U.S. 193, 197 (1979), for example, the Supreme Court addressed the question whether an employer violated Title VII of the Civil Rights Act of 1964 by adopting a voluntary affirmative action plan designed to “eliminate manifest racial imbalances in traditionally segregated job categories.” The Supreme Court upheld that voluntary plan, explaining that “break[ing] down old patterns of racial segregation and hierarchy” is consistent with Title VII when the employer’s voluntary plan does not “unnecessarily trammel” on the rights of white employees, does not require the discharge of any employees, does not create “an absolute bar” to anyone’s advancement, and does not extend indefinitely into the future but appears designed merely to eliminate a “manifest racial imbalance.” Id. at 208-12. The Court has applied a similar analysis to employers’ voluntary affirmative action plans that take an employee’s sex into account. See Johnson v. Transportation Agency, 480 U.S. 616 (1987).

With respect to higher education specifically, the Supreme Court considered the extent to which schools may (consistent with equal protection principles and Title VI of the Civil Rights Act) consider race in admissions 25 years ago in University of Calif. Regents v. Bakke, 438 U.S. 265 (1978). In that case, a majority of the Members of the Court invalidated a program that reserved a certain number of spots in a medical school program for members of certain racial or ethnic minority groups; a different majority of the Justices also reversed an injunction that had barred the medical school from ever using race as a factor under any circumstances. Justice Powell, the only participating Justice who was a member of both majority groups, accepted the argument that “attain[ing] a . . . diverse student body” was a compelling interest that satisfied strict scrutiny in the particular context of a “properly devised” university admissions program, a context that he believed infused with First Amendment considerations that counseled some deference toward the judgment of the educators who designed the admissions program. See 438 U.S. at 311-12 (opinion of Powell, J.).

Because Bakke produced no single majority opinion for the entire Court, the lower courts have divided on the question whether the various opinions issued by the individual Justices who participated in the case set forth a rule of law that lower courts are required to follow—and in particular whether Justice Powell’s opinion sets forth the controlling rule of law. Compare Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996), and Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1247-50, 1261 (11th Cir. 2001), with Smith v. University of Washington Law Sch., 233 F.3d 1188, 1199-1200 (9th Cir. 2000), and Grutter v. Bollinger, 288 F.3d 732, 738-42 (6th Cir. 2002). On December 2, 2002, the Supreme Court agreed to decide this question in the Grutter case. The case will be argued before the Supreme Court on April 1, 2003, and a decision should be issued before the Court’s summer recess. The Court’s opinion in Grutter will provide the framework that I will be required to follow, and would follow, in assessing any challenge to the constitutionality of a university program that considers race as a factor in admissions. Of course, as explained above, the specific application of the Court’s decision in Grutter will necessarily depend on the particular circumstances relevant to the classification challenged.

2. Other than cases in which you were an advocate, please tell us three cases from the last 40 years of Supreme Court jurisprudence you are most critical of, and just give me a couple of sentences as to why for each one.

RESPONSE: Traditionally, it has not been considered appropriate to require judicial nominees to agree or disagree with specific Supreme Court precedents in the context of a nominee’s confirmation hearings, particularly where, as in my case, the nominee would (if confirmed) serve on an inferior court. There are several reasons for this view. As I explained when I appeared before the Committee, a nominee is not really in a position to “criticize” the work of the Supreme Court—in the sense of asserting categorically that the Court got it “right” or “wrong”—without doing the intensive work that the judicial function requires: that is, coming to the case with an open mind, listening to the parties, examining and critically testing the parties’ arguments, and independently examining the record and the case law. Judges, particularly inferior court judges, have no occasion, call or need to do that with respect to questions already decided. The job of a judge is to faithfully follow and build on precedent, not to question it. As Justice Cardozo once noted, “[t]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” Benjamin Cardozo, The Nature of the Judicial Process 149 (1921).

Perhaps more importantly, any statement by a nominee that a particular case is “wrong” not only is likely to be insufficiently informed, but also could easily lead to a perception that the nominee somehow has publicly committed or suggested that he will approach the relevant issues in a particular case with a jaundiced eye. I strongly believe, if I am confirmed, that I must enter judicial office (and must be believed by the public to have entered judicial office) completely unencumbered by any commitments to anyone other than compliance with the judicial oath. I can represent to you that no one at the White House or in the Executive Brach asked me to name any cases that I believe the Supreme Court got “wrong.” Had I been asked, I would have declined.

For those reasons, I do not believe I can list for you cases of which I am “critical” in the sense of suggesting cases that I might decide differently if I were a judge. At the same time, I can identify cases in which I do not believe the Supreme Court has ideally discharged its role as expositor of the law for reasons wholly unrelated to whether or not the particular ruling was correct. One example is Furman v. Georgia, 408 U.S. 238 (1972), which narrowly invalidated existing death penalty statutes, but did so without providing any real guidance for legislatures, lower courts or members of the bar: the Court issued nine separate opinions (five in favor of overturning the sentences, and four in favor of upholding them) spanning nearly 250 pages in the United States Reports, but produced no reasoned majority opinion. The failure of the Court to provide a unifying rationale was especially unfortunate because the Court was breaking new ground, and apparently departing from a very recent decision of the Court. See McGautha v. California, 402 U.S. 183, 207-08 (1971).

A similar example is 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), a case involving the constitutionality of certain restrictions on advertising by liquor retailers. Although all nine Justices believed that the restrictions were not consistent with the First Amendment, the Justices issued a total of four opinions that variously disavowed the test for commercial speech restrictions previously set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557 (1980), applied that test “narrowly,” and suggested a “less than strict” review was appropriate under Central Hudson. Seven justices, in two different plurality opinions, also “disavowed” or “distinguished” Posadas de Puerto Rico v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), another precedent that was barely a decade old. Again, while I hold no particular brief for any of the views advanced by the competing, overlapping opinions in 44 Liquormart, and certainly do not pretend to have the answer to the difficult questions confronted by the several opinions, I am critical of opinions like this one because they make it difficult for litigants and courts to derive needed guidance from Supreme Court pronouncements.

A final example of the type of case in which I believe the Supreme Court has served its role in our legal system less than well—wholly apart from the merits of the issue or the correctness of any particular ruling—is a line of cases dealing with the extent to which it may be appropriate to permit courts, rather than juries, to find facts that increase a criminal defendant’s sentence. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), and Jones v. United States, 526 U.S. 227 (1999), the Court in succeeding years narrowly divided (5 to 4) to permit and then apparently forbid such fact-finding by the court. A year later the Court, after a review of its precedents, again divided 5-4 in announcing that the Constitution requires the government to prove to a jury, beyond a reasonable doubt, any fact (other than a prior conviction) that increases the penalty for the crime beyond the statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466 (2000). In so doing, the Apprendi Court strongly suggested that its ruling was fully consistent with Walton v. Arizona, 497 U.S. 639 (1990), for it noted that it had previously “rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges . . . to find aggravating factors before imposing a sentence of death.” Apprendi, 530 U.S. at 496-97 (citing Walton).

Barely two years later, however, the Court concluded that “Apprendi’s reasoning is irreconcilable with Walton’s holding” and accordingly “overrule[d] Walton in relevant part.” Ring v. Arizona, 122 S. Ct. 2428, 2432 (2002). On the same day it decided Ring, the Court issued another fractured ruling applying (but this time distinguishing) Apprendi, with at least one Justice in the five-member majority apparently concurring in the result primarily on the basis of his disagreement with Apprendi. See Harris v. United States, 122 S. Ct. 2406 (2002); see id. at 2420-22 (Breyer, J., concurring in part and concurring in the judgment); see also id. at 2420 (O’Connor, J., concurring) (“As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner’s arguments”). Again, without expressing any view on the merits of these difficult issues, it seems to me fairly plain that the Supreme Court’s opinions in these cases make it extremely difficult for legislatures, lower courts and litigants to obtain reliable guidance in this important area of the law, particularly in light of the Court’s decision to overrule a case that was barely a decade old and which seemingly was reaffirmed in Apprendi itself and in light of the fact that one half of the Court’s latest word on the subject (the Harris case) appears to turn on the votes of Justices who reject the governing precedent (Apprendi). In cases like these, I believe the Court serves its institutional role as expositor of the law less than well.

To sum up, my criticism of these cases reflects my strong belief than an appellate court is a court, not a collection of individual judges. The judges on an appellate court have a solemn responsibility to act collegially to produce rulings that are as reasoned and clear as possible. If confirmed, I would always strive to keep this in mind and remember that I am just one member of a multi-judge court. I would work very hard and collaboratively with other judges on the court not only to reach the right answers in every case, but to do so in a manner that provides the most reasoned and clearest possible guidance for the people affected by the court’s decisions.

3. Which judge has served as a model for the way you would conduct yourself as a judge and why?

RESPONSE: As I previously stated, I have a great deal of admiration for Justices Anthony Kennedy and Lewis Powell and for Judge Amalya Kearse—the judges for whom I worked as law clerk. Judge Kearse, who gave me my first job out of law school, was the first African American lawyer to become a partner in a major Wall Street law firm; she has one of the finest analytical minds of any lawyer with whom I ever have been privileged to work. Justices Kennedy and Powell, after distinguished careers at the bar, excelled as Justices in our highest Court; I deeply admire their life accomplishments, fair-mindedness, and collegiality.

There is, however, no judge who would serve as a model for my conduct as a judge with respect to the adoption of a particular methodology, philosophy, or approach to constitutional or statutory issues. There are several reasons for that. First, precedent often dictates or requires a particular methodological approach to a given part of the Constitution. The required methodological approach for the particular question at hand may be result of doctrinal developments in which the views of a particular Justice whom I may personally admire—say, for example, the second Justice Harlan—did not prevail or prevailed only in modified form. Whatever admiration I might have for a particular judge or Justice, my duty as a judge would be to follow the approach to the question that was adopted by the Supreme Court.

Second, I cannot honestly say that I am familiar enough with the entire body of work of any one particular judge to say without hesitation that I would “model” my work as judge on his or her approach. Many of our most renowned judges have lived prolific legal lives; Justices Holmes, Byron White, John Marshall and Thurgood Marshall, for example, served our country with distinction for several decades. I am fairly certain that most practicing lawyers (even those who, like me, are fortunate to practice regularly before the Supreme Court)—or, indeed, most court of appeals judges—generally would be able to offer only what might be loosely described as impressionistic judgments of the entire work-life of even our most renowned judges. To be sure, such judgments may be adequate to identify particular aspects of a judge’s work that one admires. For example, I have often been struck by the rhetorical power of Justice Jackson’s and Justice Scalia’s opinions; by the judicial restraint of Justice Frankfurter and the second Justice Harlan; by Justice Brennan’s thoroughness; by Chief Justice Rehnquist’s ability to forge consensus in difficult questions; and by the vision displayed by the first Justice Harlan in Plessy.

Last, but not least, I am very much my own man. If I am confirmed, I will view my job as getting the right answer to the cases that come before me—in light of the relevant text, history, precedent and any other interpretative aid that seems in my judgment appropriate in the circumstances—without any preconception as to how some other judge might approach the same or similar questions. As I stated when I appeared before the Committee, I believe one of the most important attributes of a judge is to have an appropriate process for decision-making. That entails coming to cases with an open mind, listening to the parties, reading their briefs, going back behind 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 an appellate court, where judges sit in panels of three, it also entails engaging in deliberations and giving ear to the views of colleagues who may have come to different conclusions. In sum, I am committed to judging as a process that is intended to give us the right answer, not simply a result.

Wednesday, March 05, 2003



March 5, 2003

Dear Senator Daschle:

As you know, some Democrat Senators have engaged in a filibuster to prevent a vote on Miguel Estrada’s nomination. They have stated that they want more information about Mr. Estrada’s record before they will end the filibuster and allow the full Senate to vote up or down on the nomination. We strongly believe that the Senate has sufficient information and should hold an immediate up or down vote. In an effort to be responsive, however, I wrote to you on February 27 to indicate that Senators who want more information can and should avail themselves of three different and important sources: Senators should meet with Mr. Estrada, pose written questions to him, and/or pose inquiries to his former superiors in the Department of Justice and Judiciary. Since my offer of February 27, however, I understand that no Senator has submitted any questions to Mr. Estrada and that no Senator has submitted any inquiries to his former superiors. And only one Senator, Senator Byrd, has scheduled a meeting with Mr. Estrada.

We are deeply disappointed by and do not understand the near-uniform lack of response thus far to my suggestion of ways in which Senators could gather more information about Mr. Estrada. Being respectful of those who have stated that they want more information, however, I want to reiterate what I stated in my letter of February 27. I urge Senators engaged in the filibuster to avail themselves of the existing opportunities to gather additional information. Senators who want more information can and should promptly meet with Mr. Estrada, pose written questions to him, and/or pose inquiries to his former superiors in the Department of Justice and Judiciary. If the asserted basis for the filibuster -- the need for more information -- is the actual motivation, Senators who have engaged in the filibuster should avail themselves of these existing sources of information.

My renewed invitation is not to suggest that we find merit in the contention that Senators currently do not have sufficient information to vote up or down on Mr. Estrada. In that regard, I ask all Senators who have engaged in the filibuster to carefully compare the extensive transcript of Mr. Estrada’s hearing, as well as his subsequent written answers, to the transcripts of the hearings of President Clinton’s three appointees to the D.C. Circuit: David Tatel, Judith Rogers, and Merrick Garland. (Two of these three nominees had no prior judicial experience, like Mr. Estrada.) Such a comparison demonstrates beyond any reasonable debate that Mr. Estrada was asked for and has already provided far more information than any of those three appointees. Judge Tatel was asked a total of three questions at his hearing. Judges Rogers and Garland were each asked fewer than 20 questions at their hearings. The three appointees of President Clinton -- combined -- thus answered fewer than half the number of questions at their hearings that Mr. Estrada answered at his hearing. What is more, both Judge Rogers and Judge Garland declined to give their personal views on disputed legal and policy questions. Judge Rogers refused even to give her views when asked about the notion of an evolving Constitution. And
Judge Garland did not answer questions about his personal views on the death penalty and on various Supreme Court precedents, stating only that he would follow the precedents. In short, we believe that the criticism of Mr. Estrada’s answers at his hearing is misplaced and reveals an unfair double standard being applied to Mr. Estrada.

We strongly believe that the record justifies an immediate up or down vote. I also respectfully urge those Senators who continue to filibuster on the ground that they need more information to avail themselves of the existing sources of information.
Please do not hesitate to contact me with any questions.



Alberto R. Gonzales
Counsel to the President

The Honorable Thomas A. Daschle

The Honorable Bill Frist
All United States Senators