Tuesday, February 25, 2003

Playing the Race Card on Estrada

I ran this week on Tuesday; apparently things just got too crowded in this week's "Lack of Perspective" section. This column responds to one of the GOP "Team Leader" letters that ran in The Tribune last Thursday morning on the Estrada nomination. To run in limited space, I got chopped a bit, and I've taken the liberty of restoring some of the excisions and, doing the lawyer thing, putting back in the citations for the Scalia and Rehnquist quotes.

Hey, all you "just cut spending" types--is this what you had in mind?

East Valley Tribune, Feb. 25, 2003

The standard GOP spin on the opposition to the nomination of Miguel Estrada to the U.S. Court of Appeals is that Estrada’s Hispanic; Democrats oppose him; therefore, they’re bigoted against Hispanics. Naturally, a Democrat making this argument would get roundly criticized for “playing the race card.”

But the race card plays both ways. Jaime Molera was Arizona’s superintendent of public instruction, the only Hispanic Republican ever to serve statewide. Last year, he lost in the GOP primary. Should we ask, “Why are Republicans afraid of a Hispanic nominee?”

It’s the same logic. Molera is Hispanic; GOP voters defeated Molera; ergo, GOP voters are bigots (or, at least “afraid of a Hispanic nominee”). If the standard of proof for discrimination is opposing or delaying a minority appointment, Republicans should answer for their treatment of Clinton’s judicial nominees.

It’s also inaccurate to refer to Bush’s Hispanic nominees in the plural. With 42 circuit court vacancies, Estrada is the only Hispanic Bush nominated. Clinton submitted 11, but the GOP-controlled Senate blocked three from getting a vote, either in committee or on the floor.

Republicans also claim that Democrats oppose Estrada because he’s too conservative. There are two fatal flaws with this claim. First, the GOP spent years opposing Clinton’s judicial nominees as too liberal. Oh, Republicans whipped up some amusing pretexts for their ideological opposition, but so have Democrats opposing Estrada. It was great fun for the GOP to delay and deny a Democratic president’s judicial appointments. Why shouldn’t Democrats enjoy the same fun now?

But the real problem is that nobody knows Estrada’s beliefs and ideology for certain. There’s absolutely nothing on the public record, and he’s steadfastly refused to give any clues to what he thinks.

As Michael Kinsley noted, at his hearing Estrada pled the nominee equivalent of a criminal defendant “taking the Fifth”: “My view of the judicial function, Senator, does not allow me to answer that question.”

To answer that particular argument, here are this week’s guest commentators, Supreme Court Justices Antonin Scalia and William Rehnquist (thanks to Sam Heldman, and the Wyeth Wire for digging out the quotes).

Scalia: “A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. . . . Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. . . . And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state interest either.” Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (emphasis added).

Rehnquist: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers . Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” Laird v. Tatum, 409 U.S. 824 (1972) (emphasis added).

It’s yet another case of the core GOP philosophy: That was then; this is now.

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