A Chequer-Board of Nights and Days

JP at Americans for Freedom is pushing Miguel Estrada to replace Justice O'Connor.

I think that, if President Bush were to wait until Roberts is confirmed to replace Rehnquist, and then nominate Estrada, that would be a stroke of utter genius.

JP reminds us of something I first noted on this blog in June 2003: John Roberts and Miguel Estrada have nearly identical backgrounds.  Roberts was confirmed.  Estrada was borked for bogus reasons -- primarily a dispute over the White House's decision to withhold the exact same sorts of documents that they are currently withholding regarding Roberts: memoranda from the nominee's work in the Solicitor General's office.

Republicans were able to make some hay out of the fact that Roberts was confirmed and Estrada wasn't, despite their similar backgrounds.  But let's face it: nobody was really paying attention.  This time, they would be.

No wonder the Democrats are making such a big deal out of those Solicitor General memoranda.  They must see this possibility too.

If John Roberts is confirmed as Chief Justice without the release of any of his memoranda from the Solicitor General's office, the Democrats would not have a leg to stand on in opposing Miguel Estrada.  He can walk into his confirmation hearings and answer all the questions the exact same way Roberts answered his.  How could Democrats possibly justify mounting a filibuster against Estrada, once they have confirmed Roberts?

The only possible argument Democrats would have is that Roberts has a couple of years of judicial experience and Estrada doesn't.  But the Republicans have a ready counterargument: Estrada would already have more judicial experience than John Roberts, if Democrats had simply confirmed him when he was nominated.  But instead, Democrats filibustered him, in part because he was a Hispanic -- a fact documented in a memorandum written by Democrat staffers, which said that Estrada was "especially dangerous" in part because "he is Latino."

The staffer's analysis was echoed by Senator Kennedy at the time: "We must filibuster Miguel Estrada's nomination. . . . The White House is almost telling us that they plan to nominate him to the Supreme Court. We can't repeat the mistake we made with [Supreme Court Justice] Clarence Thomas."  At the time, Stuart Buck noted that Kennedy didn't say Scalia, only Thomas.  As Buck argued, the only rational way to interpret Kennedy's statement was: we can't allow another conservative racial minority to be placed on the D.C. Circuit so that he could be plausibly nominated to the Supreme Court.

Republicans could have a field day with the staffer's memo and Kennedy's statement today.  As Buck convincingly argued in his post, if Title VII applied to judicial nominations, Estrada would have had a convincing cause of action due to the disparate treatment of his nomination by Democrats.  Republicans could say: we're not going to let you be prejudiced against Miguel Estrada now because he hasn't been a judge -- something that happened only because of your previous demonstrable prejudice against him.

In any event, numerous people have become Supreme Court Justices (even Chief Justice) with no previous judicial experience, including the recently departed William Rehnquist.  Other Justices with no previous judicial experience include Louis Brandeis, Byron White, Earl Warren, and Lewis Powell -- and there are others.

I have pushed Miguel Estrada for Supreme Court Justice before, in this post.  In my earlier post, I fully discussed Estrada's background and qualifications, as well as the pathetically lame nature of the arguments against him.  The post is rich with links, so consult that for any concerns you might have.

I'm telling you, the more I think about this, the more I like it.  I am hereby making it my official recommendation to the White House: first confirm Roberts, and then nominate Miguel Estrada for the Supreme Court.