Statement by Senator Feinstein

- On the nomination of Miguel Estrada to the U.S. Circuit Court of Appeals for the District of Columbia -

January 30, 2003
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"Mr. Chairman, this is a difficult nomination, because the level of concern out there among civil rights groups, Hispanic organizations, and others is only matched, really, by the lack of information we have about this nominee.

Over the last few days, I have been reviewing background materials about Miguel Estrada, talking to those who have concerns about him, and I have re-read the transcript from Mr. Estrada's hearing.

I must say that throughout this process I have been struck by the truly unique lack of information we have about this nominee, and the lack of answers he has given to the many questions raised by Members of this Committee.

This is in direct contrast to our experience with Jeffrey Sutton just yesterday. Mr. Sutton answered every question put to him intelligently and, I thought, forthrightly. Now, there may be room to differ with Mr. Sutton's analysis, but at the very least we know where he stands, how he thinks, and had a good back and forth throughout the day.

Mr. Estrada, on the other hand, chose to do his best, it seems to me, to keep from putting himself on the record on any issue of real substance.

Senator Schumer asked Mr. Estrada to name three Supreme Court cases in the last 40 years with which he disagreed. Mr. Estrada simply refused to answer.

And this was a pattern throughout his hearing. When asked whether he believed that Roe v. Wade was correctly decided, he declined to answer on the basis he had not done what the "judicial function would require" to determine whether the Court correctly decided the case. It strains credibility that a nominee to the Circuit Court of Appeals would still have no opinion on whether a case like Roe was correctly decided.

I think this is a real problem, Mr. Chairman, because it is our job to examine nominees, their background, their way of thinking, to determine what kind of judges they would be and whether or not they can fairly and impartially administer the law.

In this case, it is truly difficult to make this decision, because we have before us a fairly young nominee - just 41 years old - who has never been a judge, has little written record to speak of, and who has not given us a real sense of what kind of judge he would be.

He, essentially, is a blank slate. And if confirmed, he could serve for 30, 40 or even 50 years on one of the highest courts in this nation. We had better be right about this decision.

Mr. Chairman, the D.C. Circuit is the second most powerful court in the country. In addition to overseeing decisions by all federal agencies, the DC Circuit has produced more Supreme Court Justices than any other circuit. Three of the nine current Justices - Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg - sat on the D.C. Circuit.

Miguel Estrada has himself been widely discussed as a possible Supreme Court nominee, so the decision we make on this nomination has significant implications for not only the DC Circuit, but also the highest Court in the land.

I have been hearing from many, many constituents who are strongly opposed to this nomination.

Mr. Estrada has been criticized for lacking judicial temperament and for being too ideological to serve as an impartial decision-maker. He has been accused of imposing an ideological litmus test on liberal applicants to be Supreme Court clerks for Justice Kennedy.

His direct supervisor in the Solicitor General's office, former Deputy Solicitor General Paul Bender, has stated that Mr. Estrada is so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way."

All of these accusations raise a lot of questions. Unfortunately, I cannot say that this nominee has sufficiently answered those questions. As a result, I am going to vote NO today."