Strengthening Constitutional Self-Government

No Left Turns

The Gauntlet Is Thrown Down

There have been a lot of rumors and innuendo regarding the status of the Estrada confirmation this morning. Fox News reported this morning that Maj. Leader Frist had scheduled a cloture vote for Tuesday, and that the Justice Department had released internal memos written by Estrada. Howard Bashman reported here that a well-placed source had told him that there was no scheduled cloture vote. Bashman’s source appears to have been correct, because the story on Fox no longer includes the reference to the precise timing of any cloture vote, but suggests that a cloture vote may occur next week.

There appears to be reason to question the alleged release of documents as well. White House Counsel Alberto Gonzales sent a letter to Senators First, Daschle, Hatch, and Leahy, in which he recommended that those Senators with questions about Mr. Estrada’s performance in previous government positions should contact his previous supervisors, who he listed by name. In sharp contrast to releasing the documents, Justice Gonzales suggested:

In our judgment, these [former supervisors/employers] could provide their views on Mr. Estrada’s background and suitability to be a Circuit Judge by March 4 without sacrificing the integrity of the decisionmaking processes of the Judiciary, United States Attorney’s office, and Solicitor General’s office. And their views could assist Senators who seek more information about Mr. Estrada.

This move would not have been necessary if the documents were released, so it appears that the Justice Department has rightly kept to its policy of not releasing these documents.

The letter also called the Democratic Senator’s bluff, restating that Estrada is available for personal meetings, and that he will answer questions submitted "forthrightly, appropriately, and in a manner consistent with the traditional practice and obligations of judicial nominees, as he has before." Justice Gonzales suggested that the questions should be forwarded by the end of today, and that Estrada would attempt to answer any questions in writing by Tuesday.

A brief word about internal DOJ memos--the idea that these documents would reveal the prejudices of the writer are pretty farcical. Lawyers who should know better like Eddie Lazarus have suggested that the documents might be revealing--a statement which shows more about his political proclivities and his disregard for nondisclosure standards (wait--we already knew that from his tell-all book "Closed Chambers) than his insight. But anyone who has worked with such documents knows that these sorts of memos generally contain about as much overt opinion as a laundry list. Rather, they give a bland statement of the law on a question. Even when advocating a position, the memos generally do so in classically sterile, legal fashion.

The Democratic Senators want information--they’ve got it. If the Senators still demand the memos rather when they have the option of receiving confirmation of the appropriateness of the analsyis from Clinton Justice Department officials, then the quest for information will be revealed once and for all for what it is: an excuse for obstruction.

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