Follow-up Questions from Edward M. Kennedy

to Miguel Estrada, Nominee to the D.C. Circuit

 

 

1)         President Bush stated in his 2000 campaign that he would nominate judges like Justice Scalia and Justice Thomas.   The President repeated this pledge this past Spring, promising his party that he would continue to nominate and fight for “conservative judges.”   Many of my colleagues have held you up as an example of such a conservative nominee.  In the Spring, one Senator argued that this Committee had not moved faster to grant you a hearing because “if you’re conservative and a minority, the bar is set higher for you.”  Another Senator stated that you were being opposed because Senate Democrats  “will simply not accept a” nominee who does “not tow the line of the left of center.” 

 

Do you consider yourself a “conservative” lawyer?  Why or why not?  Why do you believe that you are being promoted by your supporters as a conservative judicial nominee?  Do you believe that your judicial philosophy is akin to that of Justices Scalia and Thomas? Why or why not?

 

RESPONSE:  My role as an attorney is to advocate my clients’ positions within ethical bounds, rather than to promote any particular political point of view, conservative or otherwise.  I have worked as an attorney for a variety of clients, including the United States Government, state and local governments, individuals charged with criminal activity, large corporations, and indigent prisoners seeking federal habeas corpus (including a death row inmate).  In those representations, I have advocated a variety of positions that might be characterized as either liberal or conservative.

 

While I am grateful for the wide-ranging and bipartisan support that my nomination has received, I have no knowledge of the specific reasons that might cause a particular supporter of my nomination to promote my candidacy for judicial office.

 

As a judge, I would view my job as trying to reach the correct answer to the question before me, without being guided by any preconceptions or speculation as to how any other judge or Justice might approach the same issue.

 

2)         I am sure you are aware of Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (D.C. Cir. 2001).  The controversy in the case arose when Hoffman Plastics fired workers in retaliation for their attempts to organize a union, and in response, the National Labor Relations Board ordered reinstatement and backpay for the workers affected.  The NLRB later denied reinstatement and granted only limited backpay to Jose Castro, an undocumented worker.  Hoffman Plastics challenged the NLRB decision, and the D.C. Circuit – in a 5 to 4 en banc decision – ultimately rejected the employer’s argument and enforced the Board’s order.  The D.C. Circuit determined that the NLRB appropriately crafted its order to take into account the policies underlying both the National Labor Relations Act and the Immigration Reform and Control Act.

 

Last term, the Supreme Court reversed the decision of the D.C. Circuit and held – in a 5 to 4 decision – that certain immigrant workers are not entitled to backpay remedies under the National Labor Relations Act.  The Supreme Court’s decision affects as many as 6 million immigrant workers across the United States, and employers have used it to claim that those workers have no labor protections.

 

The Supreme Court and the D.C. Circuit came out differently in this case; how would you have resolved the issue in this case?   Do you believe that the Supreme Court gave appropriate deference to the NLRB?  Why do you think that the Supreme Court and the D.C. Circuit came to different conclusions in this case?

 

RESPONSE:  Although I have read the Supreme Court’s opinion in Hoffman Plastics, I have not read the briefs in the case, was not present at the oral argument, and have not in­dependently researched the issue decided by the Court.  For those reasons, I am in not in a posi­tion to know how I might I have resolved the issue in the case had that issue come before me as a judge; nor (for the same reasons) am I in a position to answer the question whether the Supreme Court acted appro­priately in failing to defer to the NLRB. 

 

Courts at different levels of the federal judiciary sometimes reach different conclusions with respect to the same issue.  Although I am not aware of all the considerations that might have entered into the respective decisions of the Supreme Court and the D.C. Circuit in Hoffman Plastics, the closeness of the vote in the Supreme Court and in the en banc D.C. Circuit suggests that the case presented very difficult legal issues.  The complexity of those issues might have accounted for the different views that each of those courts took of the question presented.

           

3)         An April 11th, 2002 article in the Los Angeles Times states that you have “made no secret” of your “disdain” for Supreme Court rulings favoring affirmative action.

 

Have you spoken to reporters, colleagues or friends about affirmative action? What views have you expressed about legal rulings or policy regarding affirmative action?

 

RESPONSE:  Although I was visiting Honduras during the week of April 11, 2002, a friend sent me a copy of the Los Angeles Times article to which you refer, which was authored by David Savage.  When I read the article upon my return, I recall that I was quite surprised by the passage to which you refer, because I had not been contacted by Mr. Savage in connection with this article.  Although I believe I may have met Mr. Savage at Supreme Court bar functions, I am certain I have never discussed the subject of affirmative action (or, to the best of my recollection, any other legal issue) with him.

 

It is possible that I may have discus­sed the subject of affirmative action with colleagues or friends, though I do not recall the particulars of any specific conversations with specific friends or colleagues on this subject.  Of course, any policy views that I might have as a private citizen on the subject of affirma­tive action would not enter into how I would approach any case that comes before me as a judge.  Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), if a government program creates a racial classification, it will be subject to “strict scrutiny.”  Whether the program survives that sort of scrutiny will often involve a highly contextual and fact-specific inquiry into the nature of the justifications asserted by the government and the “fit” between those justifications and the classification at issue.  Adarand and similar cases provide the framework that I would be required to apply, and would apply, in considering these issues as a judge.

 

4)         I know that you clerked on the Supreme Court for Justice Kennedy, and that you are one of the few Hispanic-Americans ever to have clerked on the Supreme Court.  One of the issues that has received some attention in recent years has to do with the dearth of minorities and women who have received clerkships on the Supreme Court.

 

You were asked about the possible reasons for the lack of minority law clerks, and for possible remedies, in the context of an article written for USA Today.  According to the article, you “dismissed the statistics showing little representation of minorities” and stated that “if there was some reason for under-representation, it would be something to look into, but I don’t have any reason to think it’s anything other than a reflection of trends in society.”  Your quote was contrasted with statements by others that a variety of reasons were to blame for this lack of minority clerks including an “old boy network.”

 

Why were you “dismissive” of evidence of underrepresentation? What did you mean when you said that this reflected only “trends in society”?  Do you believe that discrimination might play a factor in the underrepresentation?

 

RESPONSE:  Respectfully, I do not believe I was dismissive of minority under-representation among law clerk ranks.  That was instead a reporter’s characterization of my statements concerning “trends in society.”

 

When I was contacted by the USA Today reporter, I believed that a major theme of the proposed article would center on the proposition that, were the Supreme Court a private business, it would be liable for unlawful discrimination based on the small number of minority hires alone.  That theme, in fact, appeared prominently in the article when it was published.  I responded to that notion by pointing out that it would not be fair to accuse the Justices of unlawful discrimina­tion based on such aggregate numbers because each Justice hires independently, and because the numbers in any event reflected “trends in society.”  By that, I meant that the Justices generally hire as law clerks only those young lawyers who have completed appellate clerkships with distin­guished lower-court judges, who in turn hire only the most accomplished law students from our country’s most elite institutions.  Because the numbers of minority law students who meet those exacting academic requirements is not very large, I suggested to the reporter that the issue he was investigating was part of a broader societal problem.

 

5)         The issue of affirmative action has recently divided the D.C. Circuit.  For instance, in  MD/DC/DE Broadcasters Assoc. v. FCC, 236 F.3d 13 (D.C. Cir. 2001), the D.C. Circuit found a portion of the  FCC’s Equal Employment Opportunity policy to be unconstitutional.  The regulations required licensees to conduct  “broad outreach” when hiring new employees.  Licensees had two options.  Under Option A, the licensee would choose from an FCC-approved recruiting mechanism.  Under Option B, the licensee could design its own recruiting mechanism, and would be required to report the race, gender, and source of referral for each applicant. 

 

The Court found that Option B triggered strict scrutiny, and that the rule failed strict scrutiny because it was not narrowly tailored to support a compelling governmental interest. Three judges dissented from the denial of the suggestion to rehear the case en banc, noting that strict scrutiny was inappropriate because Option B could be satisfied by broad “non-racially targeted recruiting” such as “advertising in a local newspaper read by both minorities and non minorities” alike.

 

Do you believe that this case was correctly decided? Please explain.   Under what circumstances do you believe it is constitutional for a public employer to conduct broad outreach to increase racial and ethnic diversity in the pool of qualified applicants?   What type of governmental interest would you find necessary to find such a program constitu­tional?

 

RESPONSE:  I have not read the briefs in the case, was not present at the oral argument, and have not in­dependently researched the issue decided by the Court.  For those reasons, I am in not in a posi­tion to know how I might I have resolved the issue in the case had that issue come before me as a judge.  

 

Moreover, I do not believe I can appropriately enumerate the circumstances under which it might be constitutional for a public employer to conduct “broad outreach to increase racial and ethnic diversity,” because this is the type of question that might come before me as a judge.  As I noted in response to question 3, the “strict scrutiny” that Adarand requires when racial clas­sifi­cations are at issue will generally involve highly contextual and fact-specific inquiries into the nature of the justifications asserted by the government and the “fit” between those justifications and the particular classification.  The highly-contextual nature of that inquiry, and the need avoid prejudging issues that might come before me as a judge, make it impossible for me to attempt to posit abstract governmental interests that might be sufficient to satisfy the requirements of Adarand in particular cases.

 

6)         In American Trucking v. EPA (D.C. Cir. 2000), the D.C. Circuit held that the EPA lacked authority to establish health standards for air pollution. As we all know, air pollution is a major problem, particularly in urban areas where its effect is most acutely felt by children.  The Clean Air Act gives the Environmental Protection Agency authority to use the latest in scientific knowledge to set air quality standards that are “requisite” to protect the public health.   In 1997, the Agency set a new standard for smog and soot after getting recommendations from a panel that included members of the National Academy of Sciences, medical doctors, epidemiologists, toxicologists, environmental scientists, and members of  state air pollution control agencies.

 

A panel of the D.C. Circuit, however, held that the governing provision of the Clean Air Act was too broad a delegation of power to the EPA to provide an intelligible principle for administrative action.   According to the D.C. Circuit, the delegation was so broad as to violate the “non-delegation” doctrine.  The Supreme Court subsequently reversed the D.C. Circuit’s decision in a unanimous holding.

 

What are your views on the D.C. Circuit’s decision in  American Trucking v. EPA? How would you have resolved the question presented in that case?  In your view, when is a congressional delegation to an administrative agency so broad as to violate the Constitution? 

 

RESPONSE:  I have not read the briefs in the case, was not present at the oral argument, and have not in­dependently researched the issue decided by the Court.  For those reasons, I am in not in a posi­tion to know how I might I have resolved the issue in American Trucking had that issue come before me as a judge.  Of course, the fact the Supreme Court was unanimous in reversing the D.C. Circuit’s judgment in American Trucking strongly suggests that the court of appeals seriously misapprehended or misapplied controlling doctrine.

 

I do not believe it is possible to address in the abstract what might be the outer limits of Congress’ power to confer authority on other governmental bodies, because the Supreme Court has suggested in several cases that the particular factual context is significant in analyzing the appropriateness of a particular delegation.  For example, the Court has stated that the inquiry may be “less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter.”  United States v. Mazurie, 419 U.S. 544, 556-57 (1975) (delegation to Indian tribe);  see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950) (upholding delegation of certain immigration-law duties to the President “during a time of national emergency”); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936) (foreign affairs).  Of course, the fact that the Supreme Court only rarely has struck down statutes on this ground suggests that the Court has been quite deferential to congressional judg­ments about the types of delegations that reasonably might be needed to carry on the business of government.

  

7)      In nominating you and, subsequently, in promoting your nomination, President Bush and the White House have emphasized that you are a nominee of Hispanic and of Central American origin, and that, if confirmed, you would be the first Hispanic to sit on the U.S. Court of Appeals for the D.C. Circuit.  I have long been a supporter of increased racial and ethnic diversity on our federal courts, and I am interested in your views on the matter.

 

Why, in your view, is your ethnic background relevant to your nomination?

What, if anything, do you believe that your ethnic background would bring to your service as a judge on the D.C. Circuit?

 

RESPONSE:  The President is the leader of a large and diverse country, and it is accordingly appro­priate for him, in exercising his constitutional nomination and appointment powers, to select qualified individuals who reflect the breadth and diversity of our Nation.  Among other things, by calling attention to such appointments the President and others make clear to all that ours is a Nation that endeavors to value achievement and skill without regard to race or creed.

 

8)         The Congressional Hispanic Caucus stated in their letter declining to endorse your nomination that:

 

The appointment of a Latino to reflect diversity is rendered meaningless unless the nominee can demonstrate an understanding of the historical role courts have played in the lives of minorities in extending equal protections and rights; has some involvement in the Latino community that provides insight into the values and mores of the Latino culture in order to understand the unique legal challenges facing Latinos; and recognizes both the role model responsibilities he or she assumes as well as having an appreciation for protecting and promoting the legal rights of minorities who have historically been the victims of discrimination.

 

In your view, is your nomination intended in part to promote ethnic “diversity” on the D. C. Circuit?  Do you agree with the Congressional Hispanic Caucus that a “nomination of a Latino to reflect diversity” is meaningless if that nominee lacks a historic understanding and appreciation for some or all of the above?  Why or why not?

 

RESPONSE:  I have not spoken to the President about the decision-making process that led him to honor me with this nomination, and thus I am not in a position to address what he might have intended to promote or accomplish by nominating me.  I strongly disagree, however, with the Congres­sional Hispanic Caucus’ view that I lack an understanding of the role and importance of courts in protecting the legal rights of minorities, of the values and mores of Latino culture, or the significance of role models for minority communities.