In the wake of Miguel Estrada's decision to withdraw his name from consideration for the U.S. Court of Appeals, a lot of people on the left have been crowing and threatening the Bush administration. Stop sending us judicial nominees who are "outside the mainstream," they said again and again last week.
But the only issue that seemed to interest Senate Democrats while filibustering Estrada's nomination was abortion. They assumed he was an opponent of Roe vs. Wade, the Supreme Court decision that made abortion legal 30 years ago.
Suppose they were right. Does this really make Estrada "outside the mainstream"? Not according to a Fox News/Opinion Dynamics poll taken in July. It found that 44 percent of Americans consider themselves "pro choice," and 44 percent consider themselves "pro life." The poll, which had a margin of error of plus or minus 3 percent, reflects similar results in other polls over the past several years. Americans are equally divided on the subject.
So, to which "mainstream" do Estrada's enemies refer?
Maybe Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, said it best in an op-ed published last week by The Wall Street Journal. "You can do all the right things in America," she wrote, "but if you do not agree with Ted Kennedy and Hillary Clinton, you need not apply as a federal judge."
That's not applying a "mainstream" litmus test. That is a blatant attempt to hijack the judicial branch and impose an ideological will with no tolerance for dissent.
For his part, Estrada refused to say how he felt about Roe vs. Wade. Obviously, a judge would not want to prejudice himself by testifying in advance how he feels about a matter he may some day have to judge. His opponents know this, which makes their protests all the more transparent and malicious.
The tragedy is that Estrada would have made a fine federal judge. He came to this country from Honduras as a teenager. Through hard work, he ended up as an honors graduate of Harvard Law School. He has since argued before the Supreme Court, been a federal prosecutor and served as assistant solicitor general. He earned the highest rating possible from the American Bar Association. It's a classic example of how this nation can offer immigrants a chance to excel through hard work.
But the judicial nomination process has become an ideological shredding machine that disregards qualifications and tears people apart limb from limb. Reputations are impugned without basis. Qualified, competent jurists are labeled extremists because they don't hold the "correct" views on an issue that divides the country.
If the Democrats want to keep playing this game, Republicans will likely return the favor when a Democrat takes over the White House. Meanwhile, the judicial branch eventually will grind to a halt.