Judge Not

In a perfect world, the judicial appointment process would not resemble an episode of World Wrestling Entertainment's Smackdown!: Republicans and Democrats would share agreed-upon standards of competence and experience for appointees. The White House would consult widely with senators and nominate mostly consensus candidates to the federal bench. And there would be broad agreement about the role of judges in the constitutional system.

Instead, while both parties profess to care about competence and experience, and the Bush White House pretends to consult with senators about judicial nominees, the process is in fact a war of ideology. The Democrats generally want nominees who will respect Roe V. Wade, allow the federal government to regulate the environment and workplace, protect civil-rights enforcement and guard the separation between church and state. The Republicans want nominees who will fight to overturn Roe v. Wade, curb the right of government to regulate the environment and workplace, restrict civil-rights enforcement and dismantle the wall of separation between church and state.

There is no doubt that Miguel Estrada's views on such questions are in large part why George W. Bush has nominated him to the U.S. Court of Appeals for the District of Columbia. (He's also relatively young, which means he'll serve for a long time, and Hispanic, which the White House believes will earn Bush support from Hispanic voters.) To the extent that Estrada's views are on record -- he has never been a sitting judge and has a thin paper trail -- he is known as a staunch conservative. He is reportedly a traditionalist on moral issues, opposed to the Supreme Court decisions in Roe v. Wade and Romer v. Evans (in which the Court struck down a Colorado antigay-rights initiative). Judging from his record, Estrada is opposed to affirmative action and takes a narrower view than liberals would like of the government's ability to enforce civil-rights laws.

But that's not what the debate will really be about, because neither Democrats nor Republicans ever really admit that they make their nomination decisions based on ideology. Republicans, for their part, have always denied that their ideology is an ideology at all. They argue, as Michael Kinsley pointed out in Slate last year, that their preferred view of the role of judges -- whether it goes by "judicial restraint" or "strict constructionism" or "originalism" -- is "a piety beyond legitimate dispute." It's a neat bit of intellectual jujitsu, casting all GOP challenges to Democratic nominees as principled, and all Democratic challenges to GOP nominees as political.

The Democrats, on the other hand, usually deny that they have an ideological bias, period. There are some exceptions to this rule, notably Sen. Chuck Schumer (D-NY), who has written forcefully and publicly about the legitimacy of factoring a nominee's political views into appointment decisions. But typically, when Bush has nominated a conservative to the federal bench -- or to any other appointive office, for that matter -- Democrats scramble to find any reason but ideology to reject the nominee. For future judges, the charge is usually that they don't have the right "judicial temperament." Or that they've been overturned too many times by higher courts. Or that they once belonged to an all-male country club. Or that they have demonstrated "insensitivity" toward the poor or minorities.

But the problem with diverting these debates away from ideology is that fights over qualification and temperament are harder to win. If a conservative nominee is said by liberal advocacy groups to be racially insensitive -- translation: not sufficiently aggressive on civil-rights enforcement -- the GOP usually flies in an old friend or colleague, usually black or Hispanic, to testify to the warmth and sensitivity of the nominee. When the Democrats try to argue that a conservative nominee is unfit to sit on the bench because of this or that decision or previous job, the GOP invariably trots out a parade of Republican and Democratic lawyers and judges praising the integrity and good conscience of the nominee. When the Democrats claim that a conservative nominee lacks enough experience, the GOP will note that the American Bar Association begs to differ. The terms of debate inherently favor the GOP.

And so it goes with Estrada. Democratic members of the Senate Judiciary Committee have decided to raise questions about his qualifications rather than his ideology. They've argued that Estrada doesn't have a long enough record for them to assess adequately his fitness for the bench; at a hearing last Thursday, they urged Estrada to release memorandums he wrote when he was a lawyer at the Office of the Solicitor General during the Clinton administration -- or risk seeing his confirmation held up. Estrada's GOP sponsors have, in turn, amassed recommendations from a variety of influential Democrats, including Ron Klain, Al Gore's former chief of staff, and Seth Waxman, solicitor general under Bill Clinton. They note that Estrada was rated "well qualified" by the ABA. But worst of all for the Democrats is Estrada's biography. He is the son of Honduran immigrants, a Phi Beta Kappa graduate of a top-flight college, with a law degree from Harvard and a clerkship under Supreme Court Justice Anthony Kennedy. If confirmed, he's a safe bet to be the first Hispanic justice of the Supreme Court. What, Estrada's supporters ask insistently, do the Democrats have against that?

If the Democrats build their answer around Estrada's qualifications, the Republicans will have a better hand. The Democrats will leave themselves open to Republican demagoguery; wavering senators may give in to the pressure not to vote against Estrada for fear of offending Hispanics, who might legitimately wonder why Estrada's nomination is being derailed. That's why the Democrats need to build the debate into one about Estrada's ideology, not his qualifications. Ideology stands apart from temperament, competence and experience: It's why the GOP found it so easy, during the Clinton years, to send packing scores of Democratic nominees who were indubitably qualified to be federal judges; the only thing Republican senators cared about was whether they agreed with the nominee's judicial philosophy. The Democrats have no choice but to play the same game. If ideology is the only qualification that matters anymore, then it is by his ideology that Miguel Estrada must be judged.