Strengthening Constitutional Self-Government

No Left Turns

Layers of Nonsense

The Washington Post offers yet another editorial in favor of Miguel Estrada. The editorial rightly points out that Senator Schumer and his cohorts have little reason to complain about Mr. Estrada’s answers to questions, because Mr. Estrada’s day-long grilling was marked by an "almost total absence of probative questions from members of the committee." While the Post’s conclusion that a conservative President should be able to put qualified conservatives on the courts is commendable, some of the other statements offered by the Post deserve comment.

First, while denouncing the racial rhetoric that has pervaded the Estrada nomination, the Post offers as an apparent contradiction the following:

And the White House -- the same White House that opposes the consideration of race and ethnicity by the University of Michigan in its admissions process -- openly crows about having nominated the first Hispanic to the D.C. Circuit.

The Post clearly misunderstands the President’s position. The question in the University of Michigan case is whether it is permissible for a public institution to use one standard for the admission of minorities, and another for the admission of non-minorities. By contrast, no one can seriously argue that Mr. Estrada, a magna cum laude graduate of Harvard Law School who clerked for the Supreme Court before arguing 15 cases before the Supreme Court, does not meet the same standard as other nominees for the bench. In fact, he received a unanimous ranking of well-qualified from the ABA. Thus, as the Justice Department’s brief in the Michigan case makes clear, it is not that the administration disfavors diversity, but rather it disfavors using different race-based standards. The fact that the President doesn’t wish to bend the Constitution in order to increase minority representation should not preclude him from applauding outstanding achievements by minorities.

The Post also suggests that "[t]he question at stake in the Democratic filibuster of Mr. Estrada’s nomination ultimately has nothing to do with race . . . ." This simply isn’t true. Ralph Neas and the leaders of the Estrada opposition have made clear that they oppose Estrada because they believe that he could be a "Hispanic Clarence Thomas." Their fear is that if Mr. Estrada is confirmed for the D.C. Circuit, then he will be an attractive nominee to the Supreme Court in part because he is Hispanic. As such, these advocacy groups and the Democratic caucus in the Senate are treating him different than other similarly situated nominees. This different treatment is made particularly clear by comparing the level of resistance given to Estrada compared to John Roberts, who is currently awaiting confirmation for the same D.C. Circuit. While Roberts hearing was before a Republican controlled committee, there simply has not been the outcry either within the Senate or from the advocacy groups. Indeed, Democratic Senators crossed party lines to vote him out of committee.

It is striking to realize that the actions that the Democratic Senators are taking would almost certainly constitute racial discrimination in violation of Title VII if performed by an employer. If a hiring committee chose not to hire an individual because they feared that as a qualified Hispanic he would be more likely to rise to a higher position--well, let’s just say that the committee is going to have an unpleasant day in court, even if the it offers excuses about unsubstantiated fears concerning the applicant’s business philosophy.

Accordingly, the Post missed the real contradiction. It is not ironic that the President, who disfavors using different race-based standards, should crow about the outstanding achievement (by neutral measure) of a Hispanic candidate for the bench. No, what is ironic is that the Democratic Senators who believe that it is permissible to use race as a positive factor in admissions are in fact using race as a negative factor in order to keep a highly qualified Hispanic candidate off the bench.

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