Is the rejection of Estrada racial discrimination?

Stuart Buck argues that the Democrat’s rejection of Estrada is probably an example of racial discrimination, under the legal standards used by the federal goverment (if federal anti-discrimination law applied to judicial nominees, which it does not).

This issue initially came up in a post by Jane Galt. Since Jane’s initial post, other bloggers have pointed out that the overwhelming majority of Bush’s non-white judicial nominees have not been blocked by Democrats in the Senate (see these posts by Ted Barlow, Dwight Meredith, and Nathan Newman).

Stuart responds:

In order to make his case, Stuart must show that every reason Democrats gave to reject Estrada were pretexts, and thus possibly covering up racial discrimination.

For instance, Stuart writes:

What wonderful sophistry! Stuart is to be congratulated on his chuzpah, although not on his logic. To understand why Stuart’s argument is nonsense, consider this dialog between me and a job applicant:

What would happen if I decided not to hire Ms. Applicant, on the grounds that she was evading answering my questions? Any normal person – or court – would think I had acted appropriately. Yet according to Stuart, I’ve probably committed sex discrimination against Ms. Applicant, since by Stuart’s standards, she has been perfectly forthcoming to me.

Bottom line: Estrada flat-out refused to answer questions that the Democrats considered relevant. That he offered to answer different questions from those the Democrats asked is irrelevant. And for Stuart to pretend that offering to answer different questions magically means Estrada was being forthcoming is ridiculous.

So at least one reason the Democrats gave for rejecting Estrada has not been shown to be pretextual.

More from Stuart Buck:

This would only be true if John Roberts and Estrada were identical candidates (aside from race). But there is at least one substantive difference between the two candidates – Roberts did not evade answering questions to anywhere near the same degree. The Senate Democrats thus had a non-pretextual reason to ask for Estrada’s memos but not Roberts’ – given Estrada’s refusal to answer questions in a forthcoming manner, the Democrats had to seek alternative ways of judging Estrada’s views. (Some Democrats stated this explicitly: “Because Mr. Estrada has – arguably – the thinnest record of anyone ever to be nominated for a circuit court judgeship, and because he declined to answer so many basic questions – the committee asked for him to provide the legal memoranda he wrote while serving at the Department of Justice.” – Tom Daschle). Because Roberts was apparently more forthcoming (or maybe he had a fatter record), there was no need to ask for memos in his case.

Finally, Stuart ignores a major non-pretextual reason Democrats rejected Estrada. Rightly or wrongly, many Democrats believe that “the White House and the Republican Congress have adopted a steamroller strategy to carry out their court-packing plan to stack as many of the federal courts as possible with right-wing judges who will roll back basic rights…” (That was Senator Kennedy). Similarly, Senator Leahy worries that the Republicans are “seeking to pack our courts with ideologues,” and contrasts Estrada’s case to the more “mainstream” Judge Prado, whose nomination proceeded with relative ease. Even President Bush said that “they’re blocking the vote on this good man [Estrada] for purely political reasons.”

If the Democrats in good faith believe that Estrada is, or (in light of his refusal to answer questions, might be) a non-mainstream, far-right ideologue – and in fact treat Estrada no differently than white nominees who are (allegedly) far-right ideologues, such as Charles Pickering – then that would be a non-pretextual, non-racial reason for Democrats to reject Estrada but not John Roberts.

All links via Stuart Buck, except for Stuart’s own link, which was via Crescat Sententia..