Follow-up Questions for Miguel Estrada

Senator Richard J. Durbin

Senate Judiciary Committee

 

1)         During your nominations hearing, Senator Edwards asked whether you consider yourself a “strict constructionist” when it comes to interpreting the Constitution.  You described yourself instead as a “fair constructionist.”

 

            a) How do you distinguish these two concepts?  In what ways are they similar?  In what ways are they different?

 

RESPONSE:  I do not believe that a legal text, such as the Constitution, should be construed “strictly” (i.e., grudgingly) or “loosely” (i.e., without careful regard to the text’s language so as to achieve a meaning beyond that which the text will fairly bear).  In my view, the Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains.  Although the phrase “strict construction” is often used to reflect a legal philosophy that simply gives appropriate consideration to the text of the Constitution, the phrase is also sometimes used in a pejorative fashion to describe an approach to interpretation that does not fairly reflect the meaning that the words, history and background of the text will fairly bear.  For that reason, I avoided using that phrase in response to Senator Edwards’ question. 

 

            b) Of the current members of the Supreme Court, who would you characterize as a strict constructionist?  Who would you characterize as a fair constructionist?  How would you characterize the remaining justices?

 

            RESPONSE:  Although the current members of the United States Supreme Court sometimes emphasize different interpretive tools—giving, for example, greater or less prominence to text, history or precedent in a particular case—I believe each of them attempts in good faith to give a fair reading to the Constitutional provisions that come before the Court.  For that reason, I would characterize each member of the current Court as a “fair constructionist.”

 

            c) In terms of judicial philosophy, please name several judges, living or dead, whom you admire and would like to emulate on the bench.

 

            RESPONSE:  There is no judge, living or dead, whom I would seek to emulate on the bench, whether in terms of judicial philosophy or otherwise.  If I am fortunate enough to be confirmed, I hope to seek aid from whatever legal materials may shed light on the problem before me, and thus to reach the correct answer to that problem to the best of my abilities, without any preconception about how some other judge might approach the question.

 

            I have been fortunate to know several great judges and justices in my lifetime.  I admire Judge Amalya Kearse and Justice Anthony Kennedy, for whom I was a law clerk.  During my time as a law clerk for Justice Kennedy, I also got to work with retired Justice Lewis F. Powell, Jr., for whom I developed a great deal of affection and admiration.

 

2)         In an attempt to learn more about your judicial philosophy, several of my colleagues asked for your opinion about constitutional questions that are now settled law and that are unlikely to come before you as an appellate court judge.  For example, Chairman Leahy asked for your views on Romer v. Evans, a Supreme Court opinion striking down a state constitutional provision that prohibited municipalities from passing gay rights ordinances.  You responded:

 

the question as framed is inherently unknowable for somebody in my position who has not sat through the case, listened to the arguments, conferred with the colleagues, and done all of the legwork of investigating every last clue that the briefs and the arguments offer up.

 

Likewise, in response to questioning from Senator Schumer, you stated:

 

The only time that I will feel comfortable in opining whether the Court got it right would be if I had done everything that the Court had to do in order to actually issue their ruling.

 

a) In your role as an Assistant to the Solicitor General, I am sure you read many of the Supreme Court’s decisions.  Have you ever expressed any opinion on the merits of a Supreme Court decision, to your colleagues or friends, when you had not read the briefs and watched the oral argument in the case?  For example, have you ever told anyone that you thought that Romer v. Evans was rightly or wrongly decided?

 

RESPONSE:  During my tenure at the Solicitor General’s office, it was not uncommon for lawyers in the office to discuss issues then pending, or recently decided, by the Supreme Court.  Such discussions were generally informal (often at the lunch table, since it was the practice of the attorneys in the office to lunch together in the Department’s cafeteria) and did not purport to reflect a considered judgment that a particular decision was objectively “right” or “wrong” based on an appraisal of all briefing, argument, and primary materials—the type of judgment that a sitting judge would have to make in deciding the case.  It was probably the case that neither my Justice Department colleagues nor I had read every brief filed in a particular case or attended argument.  Generally, my colleagues and I would speak of a particular decision in terms of whether it served the Government’s programmatic interests and/or whether the majority opinion set forth better reasons for the outcome than did the dissenting opinion (i.e., whether one of the opinions was a better piece of legal reasoning and writing).  I do not have any recollection that I or any of my colleagues ever described any particular decision (including Romer) as “wrong,” but it is possible that remarks such as that were made in informal conversations—as shorthand for whether a decision accorded with the Government’s interest in an area or whether the outcome urged by a dissenting opinion was advocated better than the result reached by the Court’s majority.

 

b) You and I met privately before your hearing, and I asked you for your views on Roe v. Wade.  You indicated that you considered the answer to that question to be a private matter.  But your answer suggested that you do have an opinion.  Do you have an opinion on the merits of Roe v. Wade?  If so, have you read the briefs and a transcript of the oral argument?

 

RESPONSE:  I stated during our meeting that, like many Americans, I have personal views on the subject of abortion, which views I consider a private matter that I was unprepared to share or discuss with you.  I also stated that I do not harbor any personal views of any kind that, if I were a judge, would preclude me from applying controlling Supreme Court case law in the area of abortion.  I did not state that I have private views on whether the case of Roe v. Wade was correctly decided.  As I stated during my hearing, it would not be appropriate for me to express such a view without doing the intensive work that a judge hearing that case would have to undertake—not only reading briefs and hearing the arguments of counsel, but also independently investigating the relevant constitutional text, case law, and history.

 

3)         You serve on the National Board of Directors for a non-profit foundation called the Center for the Community Interest, or CCI.  According to CCI’s website, the group’s goal is “to make communities and neighborhoods safe places to live and raise children and to make the public spaces of our cities secure and inviting places for all by helping to identify common sense, balanced solutions to crime and quality-of-life problems and to defend those policies against unreasonable legal attacks.”

 

a) How did you become associated with CCI?  For how long have you served on the Board of Directors?

 

RESPONSE:  In the Fall of 1998, Eliot Spitzer was elected Attorney General of New York.  Mr. Spitzer was a Board member of CCI (and, through his family foundation, was and is an important financial supporter of CCI). As a result of his election, Mr. Spitzer had to resign his Board position.  I was invited to join the board, and fill the ensuing vacancy, by another Board member, Scott Muller. Mr. Muller has long been involved in CCI, and I knew him as a highly respected attorney who practices in Washington, D.C. and New York City; he was recently confirmed by the Senate as General Counsel of the CIA.  I have served on the Board since my election in late 1998/early 1999.

 

b) As a director, what role do you play in the management of the organization?  How frequently does the Board meet?

 

RESPONSE:  CCI has a full-time staff that deals with day-to-day matters.  The Board deals with major policy issues and the general direction and management of the organization.

 

It has been a goal of the current Board to increase the number of times we meet.  When I first joined the Board, we met only twice a year.  We now try to meet three or four times a year.  Meetings of the Board may be conducted if a quorum of a majority of the directors is present.  Although I try to attend every meeting personally or by telephone, I have not participated in every meeting of the Board that has been held since I joined the Board.

 

4)         Although the organization purports to defend “common sense” government policies “against unreasonable legal attacks,” CCI has adopted some very controversial positions over the last few years.  For example, in Dickerson v. United States, CCI filed an amicus brief urging the Supreme Court to overturn the landmark Miranda decision, which ensures that criminal suspects have adequate notice of their legal rights.

 

As you know, the position favored by CCI in Dickerson was rejected by a decisive seven member majority of the Supreme Court, in a decision authored by Chief Justice Rehnquist.  The only dissenters in the case were Justices Antonin Scalia and Clarence Thomas.

 

a) As a Director of CCI, did you participate in deliberations or play any other role in the group’s decision to file an amicus brief in Dickerson?

 

RESPONSE:  Yes.  I was one of the Board members who voted on the question whether CCI should file a brief in the case.

 

b) Do you support the group’s position in that case?  Why or why not?

           

RESPONSE:  I voted in favor of filing an amicus brief in the case.  As I saw it, the case primarily involved an important unsettled legal issue that hinged on the constitutionality of an Act of Congress, 18 U.S.C. § 3501, rather than the issue whether Miranda should be superseded because of any disagreement that the current Supreme Court might have with that decision.

As is widely known, the Supreme Court in Miranda required that certain warnings be given to suspects during custodial interrogations.  It is less widely known that, in announcing that ruling, the Supreme Court also stated (384 U.S. at 467):

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities.  Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.  Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.  We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.

 

In 1968, in the wake of that decision and in reliance on the Court’s suggestion, Congress enacted 18 U.S.C. § 3501.   That statute required federal courts to admit into evidence all voluntary confessions, after assessing the issue of voluntariness in light of all the facts and circumstances surrounding the confession¾ including whether the suspect received the warnings required by the Miranda case.

 

Although some lower courts had assumed that Section 3501 was not constitu­tional, as a CCI Board member I supported the filing of an amicus brief that supported the constitutionality of the statute.  I believed that a law duly passed by both Houses of Congress and signed by the President should not be ignored by the lower courts without an authoritative resolution of the constitutional question by the Supreme Court of the United States.

           

c) Do you think that the defendant’s challenge of the Fourth Circuit’s decision in Dickerson was an unreasonable legal attack?

 

RESPONSE:  No.

 

d) Chief Justice Rehnquist’s decision in Dickerson invoked the doctrine of stare decisis.  Do you agree with the application of that doctrine in this case?  When is it appropriate for the Supreme Court to overturn its own precedents?

 

RESPONSE:  Dickerson reflects a reasonable application of the doctrine of stare decisis.  In my view, it is rarely appropriate for the Supreme Court to overturn one of its own precedents.  The circumstances that bear on the appropriateness of such a course were summarized by the Court in Agostini v. Felton, 521 U.S. 203, 235-37 (1997), and by the plurality opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854-55 (1992).   

 

5)         Dickerson was an alarming case to many of us because the Fourth Circuit Court of Appeals, on its own initiative, determined that Miranda was no longer binding law.  They reached this conclusion even though the Supreme Court continued to apply Miranda to criminal cases in both the federal and state systems; and despite the fact that neither the government nor the criminal defendant was willing to argue that Miranda did not apply.  The Fourth Circuit’s ruling in Dickerson strikes me as a prime example of the conservative judicial activism we sometimes see today.

 

a) What assurances can you give the Committee that you will follow Supreme Court precedent unless and until the Court explicitly overrules itself?

 

RESPONSE:  I can absolutely assure the Committee that I will follow binding Supreme Court precedent until and unless such precedent has been displaced by subsequent decisions of the Supreme Court itself.

           

b) If confirmed to the D.C. Circuit, can you assure us that you will faithfully apply the Supreme Court’s ruling in Miranda?  What about the Supreme Court’s decision in Bakke, which upheld the constitutionality of affirmative action programs in certain circumstances?

 

RESPONSE:  I can assure the Committee that I would faithfully apply the Miranda decision as I would any other Supreme Court case that has not been superseded by the Court.  With respect to Bakke specifically, in which thre was no majority opinion by the Court, there is arguably a division among the courts of appeals on the question whether the various opinions issued by the individual Justices who participated in the case set forth a rule of law that lower courts are required to follow.  Compare Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996), and Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1247-50, 1261 (11th Cir. 2001), with Smith v. University of Washington Law Sch., 233 F.3d 1188, 1199-1200 (9th Cir. 2000), and Grutter v. Bollinger, 288 F.3d 732, 738-42 (6th Cir. 2002).  As I stated during my appearance before the Committee, because that issue might come before me as judge, I do not believe I should express any views on it.  

 

6)         Let me ask you about two other controversial positions that CCI has adopted in the last few years.   In United States v. Knights, CCI argued as an amicus party that warrantless, suspicionless searches of probationers and parolees are constitutional.  Likewise, in Department of Housing and Urban Development v. Rucker, CCI defended HUD’s so-called “One-Strike” policy, which permitted automatic eviction of an entire household from public housing if any resident or guest was involved in a drug-related crime.

 

a) As a Director of CCI, did you participate in deliberations or play any other role in the group’s decision to file an amicus brief in Knights or Rucker?

 

RESPONSE:  I do not have any recollection of participating in any Board deliberations concerning these two cases.  I have made inquiry of the CCI staff, and I have been advised that neither case came before the Board during my tenure as a Board member.  In the case of Rucker, it appears that CCI became involved in the litigation while the case was pending in the lower federal courts, and thus the issue whether to participate in the litigation came before the Board before I became a Board member.  In the case of Knights, I have been advised that CCI’s position echoed the view taken by CCI in a 1997 case that presented a similar issue.  I am advised that because the issue already had been addressed by the Board in connection with that 1997 case, the Executive Committee of the Board (of which I was not a member) authorized the filing of the brief without further input from other Board members. 

 

b) Do you support the group’s position in either of these cases?  Why or why not?

 

RESPONSE:  I have not made a sufficient, independent study of the issues and briefing in each case to know whether I agree with the positions espoused by CCI in these cases.  I would note, however, that each case resulted in a unanimous opinion by the Supreme Court that appears to vindicate the position urged by CCI.

 

7)         It is difficult to find a news account about your nomination that fails to mention your status as a potential nominee of President Bush to the Supreme Court.  Frankly, I think this speculation is very premature.  You do not have any judicial record yet, so it is hard to know what kind of judge you will be on the Court of Appeals.

 

a) Have you given any thought to whether you might like to serve on the Supreme Court someday?  What are your aspirations at this point in your career?

 

RESPONSE:  During the pendency of my nomination, my wife and I occasionally have received from friends, acquaintances and well-wishers copies of the types of newspaper articles to which your question refers.  I have seen some of those articles in our local newspapers as well.  Of course, any lawyer would be honored to be viewed as someone who some day might be considered for a position on the Supreme Court.  However, beyond discussing with friends and acquaintances the contents of such press articles, I have not carefully considered the issue.  As your question points out, it would be premature for me to do so.  My aspirations at this point are to be confirmed as a United States Circuit Judge, and to discharge the duties of that position to the best of my abilities.

 

b) Has anyone from the White House or the Justice Department ever discussed with you the prospect of serving on the Supreme Court someday?  If so, what did he or she tell you?

 

RESPONSE:  No one from the White House or the Justice Department has discussed with me the prospect of serving on the Supreme Court of the United States.