Statement of Marcia D. Greenberger and Nancy Duff Campbell Urging Senate to Reject Estrada Nomination to D.C. Circuit in Absence of an Adequate Record

Contact:Camden Richards or Margot Friedman at 202-588-5180

Statement of Marcia D. Greenberger and Nancy Duff Campbell Urging Senate to Reject Estrada Nomination to D.C. Circuit In Absence of An Adequate Record

The National Women's Law Center urges the Senate to reject the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit in the absence of more complete information about his views on important areas of the law. Mr. Estrada, currently a lawyer in private practice in D.C., has failed to demonstrate a sufficient commitment to the fundamental legal rights and principles most critical to women, including the right to choose.

Senators have a responsibility to scrutinize closely the records of all nominees to lifetime appointments on the federal Courts of Appeals, and nominations to the D.C. Circuit are of particular concern because of the unique, nationwide importance of this court. The D.C. Circuit decides many important cases involving review of actions by the federal government, and is widely regarded as the second most important court in the country, after the Supreme Court. The D.C. Circuit also has produced more Justices of the U.S. Supreme Court than any other court.

No nominee is entitled to a lifetime seat on a federal Court of Appeals, and the burden is on the nominee to convince the Senate that he or she should be confirmed. Unfortunately, there is almost no public, written record of Mr. Estrada's views on important legal issues, and the Committee has declined to insist on the production of memoranda Mr. Estrada wrote while in the Solicitor General's office that might reflect his views. Moreover, at his confirmation hearing last fall, Mr. Estrada refused to state his views on numerous areas of law or on any Supreme Court opinion, including Roe v. Wade. Even when pressed, he repeatedly refused to say whether he believes the Constitution encompasses the right to privacy, replying merely that the Supreme Court has so held and that he would faithfully apply the law. An assurance by an appellate court nominee that he or she will "follow the law," especially when the nominee's record contains nothing to support such an assurance, is of limited value given the broad latitude that appellate judges have to interpret and apply the general principles laid down by the Supreme Court. There is thus a danger that Mr. Estrada would rule in favor of severe restrictions on the right to choose without expressly repudiating Roe v. Wade. This concern is particularly serious because Mr. Estrada has been described by a former supervisor in the Solicitor General's office as so ideologically driven that he could not be trusted to state the law in a fair, neutral way.

Mr. Estrada also claimed, at his hearing, that he could not reach any opinion on Roe v. Wade or any other Supreme Court opinion without listening to all the parties' arguments and checking every authority they had cited, that he never reads a Supreme Court decision and thinks that it is wrong, and that he could not recall ever discussing a particular, controversial Supreme Court decision that came down while he was serving in the Solicitor General's office. This brings to mind Clarence Thomas' testimony in his Supreme Court confirmation hearing that he had never discussed Roe v. Wadeeven though the decision came down while he was in law school, and raises serious questions about Mr. Estrada's credibility.

We conclude that Mr. Estrada has not carried his burden of demonstrating a sufficient commitment to fundamental legal principles that are critical to women. In the absence of either an adequate written record or responsive answers to questions about his views, the Senate should not confirm his nomination to the D.C. Circuit.

The National Women's Law Center is a non-profit organization that has been working since 1972 to advance and protect women's legal rights. NWLC focuses on major policy areas of importance to women and their families including economic security, education, employment and health, with special attention given to the concerns of low-income women.