The New York Times this morning editorializes that Mr. Estrada is "An Unacceptable Nominee." Their reasons deserve scrutiny. First, they point to the fact he has "a reputation for taking extreme positions" and "that his interpretation of the law is driven by an unusually conservative agenda." What evidence does the newspaper of record cite for this proposition? The statements of Paul Bender. Bender, whose ideological extremism was well-known and reported during his tenure at the Justice Department is the only person to make these statements. As I argued here here in NRO, Bender has been widely discredited for taking positions that are outside the mainstream on issues such as child pornography, and for lapses in judgment that caused the American Arbitration Association to remove him from the position as arbitrator. Indeed, citing to Paul Bender for his view on whether or not someone is idelogical or within the mainstream would be like a federal judge citing to Bellesiles for a statement about the history of guns. (Oh wait, Stephen Reinhardt of the 9th Circuit actually did that--although at least he had the good sense to pull that citation. Howard Bashman has this story on his How Appealing site.)
The Times editorial then criticizes Estrada and the Justice Dept. for failing to release internal legal memos from Estrada’s time in the Solicitor General’s office. But every Solicitor General since Lincoln has signed a statement saying that this is a remarkably bad idea. Thus, given the statements by Clinton Justice Department officials, it becomes abundantly clear that this isn’t a political move by the Bush Justice Department--but rather this is an overreach by Judiciary Committee members who are acting at the behest of the Ralph Neas brigade.
If the Republicans were attempting to block a qualified Hispanic nominee like Mr. Estrada using such scurrilous attacks, the New York Times would be screamining racism. Considering the fact that the Times genuinely fears that Mr. Estrada may be a viable Supreme Court candidate in part because he is Hispanic, such allegations may be well founded against Mr. Raines’s Times.