ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Media Matters for America (MMFA) is a web-based research center that purports to be dedicated to correcting conservative commentary. Today, MMFA posted an item titled, "Novak misled on judicial nominees," which is itself highly misleading. Here is an excerpt:

Syndicated columnist and CNN host Robert Novak falsely claimed that the number of President Bush's appellate court judicial nominees that have been blocked is "unprecedented" and added that the only reason Democrats opposed the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit was because they "didn't want a Hispanic nominated."

The falsity in this MMFA statement is evident from a Democratic memo that was made accessible to Republican Senate staffers. That memo describes a meeting between Senator Kennedy and representatives of various advocacy groups. The memo plainly shows that race was a factor:

The groups....identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.

People who met with Kennedy on that day are as follows: Ralph Neas (People For the American Way), Nan Aron (Alliance for Justice), Wade Henderson (Leadership Conference on Civil Rights), Leslie Proll (NAACP Legal Defense & Education Fund), Nancy Zirkin (American Association of University Women), Marcia Greenberger (National Women's Law Center), and Judy Lichtman (National Partnership for Women and Families).

It appears from the memo quoted above that there were other reasons in addition to race for those advocacy groups to oppose the Estrada nomination. MMFA wrongly claims that Novak said race was the "only" reason. According to Novak, Democrats were also afraid of "a guy who might go on the Supreme Court." Indeed, it appears from the memo quoted above that the advocacy groups were not just racially motivated, but (as Novak indicated) were also afraid that --- as Judge Estrada --- he might create a paper trail that could reflect well on himself, so that he would ultimately be appointed to the Supreme Court. Thus, MMFA paints a highly misleading picture. As for Novak, he has ample grounds for believing that race was a major factor in the rejection of Miguel Estrada.

Regarding MMFA's assertion about the number of President Bush's appellate court judicial nominees that have been blocked, it is true that appellate court nominees of other presidents have been blocked. However, Novak was obviously referring to blockage by filibuster. That never happened until the blockage of Miguel Estrada. As liberal scholar Mark Tushnet has written, "There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules --- on scheduling, on not having a floor vote without prior committee action, etc. --- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way."

Note #1: MMFA is run by conservative-turned-liberal David Brock, and employs ex-Democratic staffers.

Note #2: MMFA also suggests that Estrada refused to provide documents requested by senators. Again, this was sheer partisan politics on the part of the Democrats, because they knew that the particular documents they requested were confidential attorney-client materials, as explained in this letter.

NOTE #3: The Tushnet quotation comes from an exchange on a listserv for constitutional law professors. Professor Tushnet was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and Tushnet was pointing out that there was indeed a difference.