CONSPIRACY THEORIES:

In response to a sensible proposal by Walter Dellinger for a more consensual nominations process (read it here), the folks at Claremont claim that a Democratic plot is afoot to subvert President Bush's power to nominate judges. Dellinger should just "deal" with the fact that Democrats are the minority party in the Senate; apparently, nobody who is a Democrat should try to make proposals aimed at creating a more consensual and less brutally partisan nominations process.

The theory of collusion here is a little far-fetched, but you never know, I guess, what those east coast elites will do when you're not watching. At any rate, Dellinger hasn't exactly helped the Dems' case during the nominations process as a whole: he opposed their request for DoJ memos.

Partisan processes bring out the worst in people: I have rarely heard so many hypocritical and un-self-aware remarks in the Senate as I have over this issue, and, to be honest, this spills over into the academic commentary as well. Then again, Chuck Schumer is my new hero, so perhaps I would think that it's necessary to get over our fear of partisanship in the nominations process for federal appeals courts. We should acknowledge partisanship and structure the nominations process in a way to account for it.

Schumer's view may ultimately be a pipe dream. There's always going to be a certain currency available to those who argue that they're simply looking for people with "excellent qualifications" who will just "follow the law," even when the claims are transparently ridiculous.

Senator Sessions provided a particularly good example of the weirdness of the non-partisan partisan approach, however, in his questioning of Estrada. First he claimed that it was necessary to hold to the belief, attacked by "liberal law professors" and other nefarious types, that we can come to an objective determination of the law. Then he argued that there is less partisan difference on the DC Court (I believe) when environmental statutes are being interpreted than when the (mere) rules of "unelected bureaucrats" at the EPA are being interpreted, thus revealing his partisan bias against the EPA. This is somehow a non-partisan description of the duties of appellate judges during environmental litigation? Whatever. I thought I saw Estrada wince a bit at this point in the hearing (as in, "with friends like these. . ."). But maybe I was mistaken. Maybe Estrada agrees with him. We don't know. We should.

The Republicans are so obviously trying to use Estrada in appeals to Hispanics to break their ties with Democrats that it is, frankly, disingenuous to claim that partisanship has not played a decisive role in the nominations process thus far. Orrin Hatch's introduction of Estrada makes this clear: he's a success story, proves the relevance of the American dream, Hispanics need to know that Democrats who oppose Estrada don't stand up for Hispanic values (revealed by. . .wait for it. . .POLL RESULTS) such as family and hard work, and Democrats are beholden to liberal civil rights interest groups who do not represent poll-result-tested Hispanic values. Let me repeat this: in his introduction of Estrada, Orrin Hatch used poll results to show why nominating Estrada was an important goal. I haven't heard a single person criticize this part of the nominations process.

Whatever. I'm going to get some dinner. I'm sure this issue will be around for a while.