Sometimes you just want to slap them

Matthew Hoy
By Matthew Hoy on January 29, 2003

The New York Times editorial page, when it comes to taking positions on judicial nominees, now appears to be a wholly-owned subsidiary of Ralph Neas and People for the American Way.

The Times uses lame and specious arguments to attack Estrada, a Latino American with a brilliant legal resume and an inspiring story, as being unfit for the bench.

Mr. Estrada, a native of Honduras and graduate of Harvard Law School, has a strong legal résumé. But people who have worked with him over the years, at the solicitor general's office and elsewhere, report that his interpretation of the law is driven by an unusually conservative agenda. Paul Bender, a law professor and former deputy solicitor general, has called Mr. Estrada an ideologue, and said he "could not rely on his written work as a neutral statement of the law." In private practice, Mr. Estrada defended anti-loitering laws that civil rights and groups have attacked as racist.

"Unusually conservative agenda?" Anyone to the right of the Times editorial page undoubtedly qualifies for that label -- a vast majority of Americans.

The Times highlights the complaints of Paul Bender. Who exactly is Paul Bender? The Claremont Institute's Robert Alt has some background:

Opponents point almost exclusively to the statements of one man: Paul Bender. Bender, who served as "political" deputy and as a supervisor to Estrada in the Solicitor General's office during the Clinton administration, has repeatedly stated that Estrada is "too much of an ideologue to be an appellate judge." Bender is alone among his colleagues at Justice in making this accusation. In fact, Seth Waxman, the Solicitor General for whom both Bender and Estrada worked, sent a letter to the Judiciary Committee expressly disagreeing with Bender's assessment, and lauding Estrada's professionalism and judgment. Because Bender provides no support for this statement, all we have to go on is his word. It's therefore worth getting to know Bender.

Because Bender was the "political" deputy, he was permitted to assume his high post without going through the pleasure that is Senate confirmation. This circumvention of Senate review was obviously no accident. From the earliest days of his tenure, Bender was referred to in the press as "not a popular pick," and "an unabashed liberal." His presence in the Solicitor General's office led to well-publicized friction with the career staff, who cited as their primary grievance not Bender's politics, but rather his lack of collegiality and his tendency to "impugn people's work and their motives and their integrity."

In contrast to his unfounded allegation that Estrada lacks the proper temperament to be a judge, Bender has actually demonstrated that he lacks the proper temperament to be even a neutral arbitrator. In 1999, the American Arbitration Association removed him from the position of arbitrator in an action between the Arizona Gaming Control Board and Indian tribes, citing "serious concerns regarding Bender's attitude and approach," which included "inappropriate communications" with one of the parties to the case. That Bender has failed at his one effort as impartial decision-maker casts grave doubts about his ability to stand in judgment of Estrada's impartiality.

Furthermore, for someone so quick to impugn the ideological motives of others, Bender's resume reveals a career remarkably influenced if not driven by ideology. He served as Chief Counsel for the Presidential Commission on Obscenity and Pornography, which recommended the abolition of pornography laws, a position so outside the mainstream that it was rejected 95-5 by the Senate. His own views seem to go even farther, leading him to suggest that sexually explicit material should not be removed from public display "just because it's disgusting." It should come as no surprise then that while he was at the Solicitor General's office, that office reversed its position in a child-pornography case, arguing that depictions of children must be more explicit than the prevailing standard to constitute child pornography. This "mainstream" position was rejected by the Senate by a vote of 100-0.

If that isn't bad enough, there's even more evidence that the Times editorial writers have gone beyond doing a political snow job and have dropped with Bender to the depths of dishonesty.

Recently, Judiciary Committee chairman Patrick Leahy asked Estrada to give the committee copies of his personnel evaluations from his time at the Department. Estrada agreed, and the documents reveal that Estrada, according to his supervisors:

  • "states the operative facts and applicable law completely and persuasively, with record citations, and in conformance with court and office rules, and with concern for fairness, clarity, simplicity, and conciseness."
  • "[is] extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communication position to others."
  • "[all] dealings, oral, and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner."
  • "[all] briefs, motions, or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies, or fails to discuss and analyze relevant authorities."
  • [is] constantly sought for advice and counsel. Inspires co-workers by example."
  • Estrada's performance was consistently rated outstanding. And the man who wrote and signed those remarkably positive evaluations was none other than...Paul Bender.

With this sort of information impeaching Bender's accusations -- you can bet that no reputable news organization would take his claims at face value. Certainly if the parties were reversed (a Democratic nominee assailed by a Republican political appointee) the Times would highlight the hypocrisy. Yet, the Times editorial writers are either poorly-informed, gullible or incredibly partisan hacks. (Take your pick.)

The Times, in its efforts to tar Estrada and the Bush administration as way outside the mainstream, displays the true depth of their stupidity/ignorance/dissembling:

Senators have a constitutional duty to weigh the qualifications of nominees for the federal judiciary. But they cannot perform this duty when the White House sends them candidates whose record is a black hole. Mr. Estrada's case is particularly troubling because the administration has more information about his views, in the form of his solicitor general memos, but is refusing to share it with the Senate.

Is the Democratic Senators' request for these memos reasonable?

Not according to every single former solicitor general -- Republican or Democrat.

In a letter to Sen. Patrick J. Leahy, committee chairman and Vermont Democrat, the solicitors said they were "concerned" about the requests to turn over appeal recommendations, certiorari recommendations and amicus recommendations on which Mr. Estrada worked while employed by the Office of the Solicitor General.

"As former heads of the Office of the Solicitor General -- under presidents of both parties -- we can attest to the vital importance of candor and confidentiality in the solicitor general's decisionmaking process," said the letter obtained by The Washington Times.

The letter is signed by all seven living solicitors: Clinton appointees Seth P. Waxman, Walter Dellinger and Drew S. Days III; Bush appointee Kenneth W. Starr; Reagan appointee Charles Fried; Nixon appointee Robert H. Bork; and Kennedy appointee Archibald Cox, 94, a former Watergate special prosecutor.

"Any attempt to intrude into the office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests, a cost that also would be borne by Congress itself," the letter said.

Note that Estrada has also received a "unanimous well-qualified" rating from that bastion of conservatism -- the American Bar Association.

Once upon a time, you could trust the Times to at least be fair and honest -- no more.


To be clear, it's still a 1A violation even as they supposedly intended it. But their rush to pass it made it encompass all sorts of stuff.

The judge should not take them at their word that they will "fix" it. The judge should issue the preliminary injunction we requested.

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January 2003



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