News Release

September 4, 2003

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Estrada Withdrawal a Blow to Rule of Law--and Political Civility
Cato legal scholar says Democratic filibusters have poisoned judicial confirmation process

WASHINGTON--Miguel Estrada's understandable decision today to withdraw his name from consideration for a seat on the nation's second highest court, ending a bitter 29-month confirmation battle in the Senate, is a blow to the rule of law and political civility, said Roger Pilon, vice president for legal affairs at the Cato Institute and director of Cato's Center for Constitutional Studies.

Nominated by President Bush for a seat on the D.C. Court of Appeals on May 9, 2001, Estrada did not receive a hearing before the Democrat-controlled Senate Judiciary Committee until Sept. 26, 2002. But the committee refused to give him a vote, so he had to be renominated on Jan. 7 of this year. Now in the minority, Democrats could no longer block a committee vote on Estrada, so they launched an unprecedented filibuster against him on the Senate floor. There he has been, like several other appellate court nominees, twisting in the wind ever since.

"What's going on with the Bush appellate court nominees is a scandal," said Pilon. "These are highly qualified people, some of the best lawyers in the nation. Estrada's is an all-American story. Arriving here from Honduras as a teenager, speaking little English, he graduated at the top of his class at Columbia College and the Harvard Law School before serving in the Justice Department's Solicitor General's Office. He has had a brilliant legal career, arguing 15 cases before the Supreme Court."

But People for the American Way, the National Abortion Rights League, and other groups on the radical left have convinced Senate Democrats that Estrada is "out of the mainstream." Yet they can point to nothing to support that charge. Instead, they complain that the administration has refused to release privileged memoranda Estrada wrote while in the Solicitor General's Office--a decision supported by every living solicitor general of both political parties.

"But the deeper problem," Pilon said, "is that Democrats are poisoning the confirmation process by insisting that nominees declare their views on highly charged political issues of the day as a condition of being confirmed. That politicizes and corrupts the rule of law by breaking down the fundamental distinction between politics and law. It undermines the civility that is essential to the confirmation process. And it discourages those with any regard for their integrity from accepting nominations to high office. The time has come for Senate Republicans to revisit the filibuster rule. It has no place in the Constitution's confirmation process."