| Judging Politics |
8 September 2003
|
Estrada Withdraws Nomination
Thursday of last week, Miguel Estrada told President Bush that he would be withdrawing his name from consideration for a place on the federal bench. While he had about 55 votes in favor of his appointment, the GOP needed 60 to close the filibuster the Democrats had estabilshed against the nomination (only in the US senate could a minority of 41 impose its will on a majority of 59 -- democracy?). The White House and its amen corner vilified the Democrats for denying a conservative Hispanic immigrant a place on the bench. Tough, the courts are political places, and therefore, mustn't pretend otherwise.
As a
lawyer
, Mr. Estrada is first-rate, exceedingly qualified. He graduated from Harvard Law School after moving to the US from his native Honduras (learning English along the way) and worked in the Clinton Justice Department. He currently is in private practice in Washington, DC, a town with more than a few lawyers for competition.
Yet a place on the federal appeals bench is not a civil service appointment. The laws which are interpreted by the courts are the result of political decision making. Divorce, to point out a rather benign example, is rather commonplace in 21st century America. That reflects a change in cultural values (for good or ill) that has been reflected in changed laws. Interpretation of those laws is inherently political. If one doubts that, merely consider what would happen were a judge to decide laws permitting divorce were unconstitutional.
The argument that no judge would so undermine the process is nonsense. Judges may do as they please, and as Justice Oliver Wendell Holmes himself noted, "The consitution is whatever the Supreme Court says it is." To suggest that judges have no political axes to grind is ridiculous. So, America needs to grow up a little. Judges are political appointees,and legal qualifications are important, but being able to put together enough votes for confirmation demonstrates that the nominee is politically acceptable to an adequately broad body of opinion to confer legitimacy on the new judge.
President Bush has said, rightly, that the system for selecting judges is broken. And indeed it is. Might one suggest a single 10-year term, nominated by state bars, and elected by the people by proportional representation? It won't make for better judges, just more popular ones, but democracy is not about wise political choice, it is about confering legitimacy. Naturally, not a single part of the proposal will be accepted. Neither the president nor the senators would ever give up that kind of power over the judiciary.
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