SENATE DEMS GRAYMAIL ESTRADA NOMINATION

By now, most facts surrounding the nomination of Miguel A. Estrada to the United States Court of Appeals for the District of Columbia Circuit are well known. The nominee immigrated to the United States from Honduras as a young boy, learning English as a second language. Honors from Harvard Law School. A stint in the Solicitor General’s office of the Department of Justice. Fifteen arguments before the Supreme Court of the United States. Partner in a prestigious law firm. Highest rating from the American Bar Association. Support for his nomination from a majority of Senators.

But none of this matters to the Senate democrats, who see Estrada as a very dangerous nominee: a conservative.

While the democrats controlled the Senate, and thus the Judiciary Committee, they were able to bottle up Estrada’s nomination in committee. As a result of the Senate majority shifting last year, Estrada’s nomination finally escaped the committee and made its way to the floor of the upper chamber. But the democrats weren’t finished. A filibuster has ensued, and so far it has been successful.

Though the democrat strategy is obvious (defeat the Estrada nomination), and though the party’s major tactic is equally apparent (prevent cloture, by mounting a filibuster), what has escaped notice is the Estrada opponents’ use of a shoddy device usually employed by litigation lawyers – especially those who represent criminal defendants. It’s called "graymail."

Graymail is a "damned-if-you-do, damned-if-you-don’t" tactic. It consists of making a request of one’s adversary for material that he doesn’t want to, or can’t, provide. Graymail is often used in national security cases, where in the discovery stage of the proceedings the defense seeks highly sensitive material so that the government is put on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government is loathe to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn’t want). There are countless examples, among them the recent case of the Los Alamos lab’s Wen Ho Lee and the espionage cases of rogue FBI and CIA agents.

In the Estrada case, the Senate democrats have employed the graymail tactic by seeking confidential documents generated by Estrada while he was serving as a lawyer in the Solicitor General’s office of the Department of Justice – documents having little or no relevance to decisions to be made by a federal court of appeals judge who takes a solemn oath to uphold the Constitution and laws of the United States.

The dilemma in the Estrada case for the Executive Branch, and the weapon the democrats’ demand has given them, is this: Either the Department of Justice complies with the Senate democrats’demand, thus handing the democrats a veritable can of red herring documents they can then use to manufacture yet more excuses to impugn Estrada’s ideological fitness to serve on the DC Circuit, or the government refuses to hand over the confidential documents, thus enabling the democrats to complain loudly, as they have, that Estrada and his administration supporters have something to hide.

Graymail is a considerably objectionable tactic in the context of a conventional lawsuit, even one involving national security. In the context of the Constitutional "advise and consent" function of the United States Senate, however, it is indefensible. Not a shred of constitutional history or Supreme Court precedent exists to justify the Senate democrats’ de facto amendment of the Constitution’s normal "majority rules" principle by preventing cloture through a filibuster that takes 60 votes to end, and which thus deprives an existing Senate majority of a vote on the Estrada nomination.

If the democrats’ filibuster succeeds, much more than the nomination of Miguel A. Estrada will have been subverted. With it, so too will have been the President’s power to name judges and other officials, as well as the proper advise and consent function of the Senate of the United States.