Did Miguel Estrada
tell a fairly
obvious untruth at his Senate hearing last Fall?
Last week a New York Times editorial said that when "asked his views of Roe v. Wade, the landmark abortion case, Mr. Estrada responded implausibly that he had not given enough thought to the question."
Now I was curious: what was the actual statement they were referring to?
I looked through the transcript and I imagine they must be talking about this exchange he had with Senator Diane Feinstein ...
MR. ESTRADA: The Supreme Court has so held and I have no view of any nature whatsoever, whether it be legal, philosophical, moral, or any other type of view that would keep me from [sic] apply that case law faithfully.
SEN. FEINSTEIN: Do you believe that Roe was correctly decided?
MR. ESTRADA: I have -- my view of the judicial function, Senator Feinstein, does not allow me to answer that question. I have a personal view on the subject of -- of abortion, as I think you know. And -- but I have not done what I think the judicial function would require me to do in order to ascertain whether the court got it right as an original matter. I haven't listened to parties. I haven't come to an actual case of controversy with an open mind. I haven't gone back and run down everything that they have cited. And the reason I haven't done any of those things is that I view our system of law as one in which both me as an advocate, and possibly if I am confirmed as a judge, have a job of building on the wall that is already there and not to call it into question. I have had no particular reason to go back and look at whether it was right or wrong as a matter of law, as I would if I were a judge that was hearing the case for the first time. It is there. It is the law as it has subsequently refined by the Casey case, and I will follow it (italics added).
Now statements like these are carefully crafted by handlers and preppers. And their obvious purpose is to allow the speaker to muddle through without really answering the question. Or, perhaps, tell an untruth which can never quite be exposed as an untruth.
But for what it's worth, what does this statement actually mean?
As nearly as I can figure, Estrada is saying that though he has personal views about abortion and is familiar with the legal questions involved, he has never been in a position -- as a judge would be -- of having to sit down, review an actual case with an open mind, read all the relevant cases, and so forth. Now that's implausible on its face. But it turns out also to be almost certainly untrue.
In the Fall of 1988 Estrada was a clerk for Justice Anthony Kennedy. On November 8th, 1988 then-Solicitor General Charles Fried filed a brief with the Supreme Court urging the Court to take up the case which eventually became Webster and to use it to overturn Roe. On January 9th of 1989, the Court did finally grant cert, thus agreeing to hear the case.
Keep in mind that Kennedy was new on the Court and widely believed or at least, by many, hoped to be the one that would provide the decisive vote against Roe. Didn't turn out that way of course. But that's what people thought.
Keep in mind too that, according to Edward Lazarus's book Closed Chambers, the crop of clerks on the Court that year were particularly ideological. The conservatives among the clerks formed what Lazarus -- a clerk that year himself -- called "the cabal."
Now, Estrada left the Court I believe in early January of 1989, right about the same time that the Supremes agreed to hear the case, perhaps a few days before or a few days after. The relevant point, however, is that he was there for the entire period in which the decision was being made over whether to accept the case. At the time, Roe was the issue on the Court and Kennedy was the Justice on that issue. Estrada was clerking for one of the nine Justices who had to do exactly that 'judicial function' Estrada later described. As his clerk, doesn't that almost certainly mean Estrada pretty much had to do it too?
And there's more. It turns out there was another abortion related case being decided that Fall: the so-called "Michael H." case, a case which didn't itself have anything to do with the abortion issue, but which conservatives on the Court intended to use to open up a new line of attack against Roe. Scalia wrote the majority opinion in that case. And his first version, which would have been highly damaging to Roe was circulated in November 1988. Again, that's when Estrada was clerking for the guy who was in effect the Roe v. Wade Justice. (Note: Certainly different clerks work on different cases. In this case, a source tells me, the pool memo on whether to grant cert on Webster was written by a Blackmun clerk, ironically enough. And Kennedy was part of the pool. But in the Supreme Court, on a case of such magnitude, it's simply not credible that everyone there wouldn't have been chattering and thinking about this case and its disposition. Particularly Estrada.)
Nominees often say things that you pretty much know aren't true. But isn't this a case where Miguel Estrada said something that you can pretty much prove isn't true?