The Senate Democrats may have found the ammunition (or, more accurately, the fig leaf) with which to shoot down Miguel Estrada’s nomination to the federal judiciary. As noted in previous blogs, the Dems are trying to prove that Estrada is a “conservative ideologue.” At today’s hearing, they relied on allegations that Estrada blocked liberals who wanted to clerk for Supreme Court Justice Kennedy from being considered. Federal judges take on recent law school graduates as clerks. The clerks do legal research and often draft the opinions of the judges, who then edit the drafts as they see fit. Estrada clerked for Justice Kennedy and later served on a committee that helps screen applicants for future clerkships with the Justice. Again, the allegation is that Estrada would not pass along applications if he thought the candidate was too liberal.
I don’t know many of the facts, but in principle there doesn’t seem to be anything wrong with what Estrada is said to have done. Other things being roughly equal, Supreme Court Justices of all political persuasions are best served by like-minded clerks. And, because a Supreme Court clerkship is so coveted, things will always be roughly equal — that is, there will always be extremely well qualified liberal, conservative, and moderate candidates to select from. Estrada did Justice Kennedy no disservice unless (a) Kennedy told him he didn’t care about the ideology of his clerks or (b) Estrada excluded candidates whose ideology differed from his own but not significantly from Kennedy’s (Kennedy being conservative but not that conservative). However, since the Dems don’t need much of a pretext to sink conservative nominees, this flap may be enough. Moreover, Estrada was asked today to admit or deny making various statements that allegedly have been attributed to him by people involved in the clerk selection process. Thus, if the Dems can’t get traction on the merits, they can always say it’s about credibility. Stay tuned.
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