I'm most impressed by Estrada's letter, given [ame="http://en.wikipedia.org/wiki/Miguel_Estrada"]his experience[/ame]:Conservative lawyers and academics are voicing support for Supreme Court nominee Elena Kagan, praise that could soften criticism from the right and provide cover for any Republican senators inclined to vote for her nomination.
The essence of their take on Kagan, the former Harvard Law School dean who now serves as solicitor general, is that she clearly has the smarts to be a justice and has shown an ability to work with all sides on thorny issues.
"She has had a remarkable and truly unusual record of reaching out across ideological divides," said Michael McConnell, a former federal appeals court judge who was nominated by President George W. Bush.
Longtime Kagan friend Miguel Estrada, whose appeals court nomination by Bush was blocked by Senate Democrats, said, "She's clearly qualified for the court and should be confirmed. Obviously, she's a left-of-center academic who never would have been picked by a Republican. But no one can doubt her intellectual accomplishments."
In a letter to the Senate Judiciary Committee Friday, Estrada said, "If such a person, who has demonstrated great intellect, high accomplishments and an upright life is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service."
Also of note:George W. Bush nominated Estrada to a position on the United States Court of Appeals for the D.C. Circuit on May 9, 2001. He received a unanimous "well-qualified" rating from the American Bar Association. Democratic Senators opposed the nomination, noting Estrada's lack of any prior judicial experience at the local, state, or federal level. Democratic Senators also objected to the refusal by the Office of the Solicitor General to release samples of Estrada's writings while employed there.
A bipartisan group of former Solicitors General wrote a letter objecting to the Democrats' demand for memos that Estrada had written while he was with the office. While not addressing past instances where such memos had previously been released, the letter argued release of prior memos by government employees to the public would endanger the Solicitor General Office's ability to provide confidential legal advice to the Executive Branch.
Leaked internal memos to Senate Minority Whip Dick Durbin mention liberal interest groups' desire to keep Estrada off the court partially because "he is Latino," and because of his potential to be a future Supreme Court nominee. Democratic spokesman for Durbin said that "no one intended racist remarks against Estrada" and that the memo only meant to highlight that Estrada was "politically dangerous" because Democrats knew he would be an "attractive candidate" that would be difficult to contest since he didn't have any record.
On March 6, 2003, there was the first of six failed cloture votes on Estrada. Fifty-five senators voted to end debate on his nomination and allow a final confirmation vote, and forty-four senators voted not to end debate. After twenty-eight months in political limbo and a protracted six month long battle using the filibuster, Estrada withdrew his name from further consideration on September 4, 2003.
On Speech, Kagan Leaned Toward Conservatives
In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.
In 1992, she wrote an essay endorsing Justice Scalia’s opinion in R.A.V. v. City of St. Paul, a decision that year striking down a hate-speech ordinance. The case involved battling opinions from Justices Scalia and Stevens, who reached the same result on different grounds. On the central questions in the case, Ms. Kagan sided with the more conservative justice. “Justice Scalia seems to me to have the upper hand,” she wrote at one point. “The position of Justice Stevens cannot be right as a general matter,” she said later.
As United States solicitor general, the government’s top appellate lawyer, Ms. Kagan has sometimes taken positions seemingly in tension with her academic writing, including in Citizens United v. Federal Election Commission, the blockbuster 5-to-4 decision in January that allowed unlimited corporate spending in elections. Marvin Ammori, who teaches First Amendment law at the University of Nebraska, said Ms. Kagan might have voted with the majority in that case. “Looking at Elena Kagan’s scholarship,” Professor Ammori wrote on the legal blog Balkinization, “I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights.”
In the 1996 article, however, Ms. Kagan rejected a version of an argument commonly made on the left these days — that corporations may be regulated because they are artificial entities created by the government. ... In the article, she also said campaign finance laws were problematic because they could “serve as incumbent-protection devices, insulating current officeholders from challenge and criticism.”