Estrada & Neutrality
Does either party have a whole lot of moral standing when it comes to the judicial nomination fight? I don't like that it has become so political, but I don't think there can be any question that what the Democrats are doing is historically in-line with what the Republicans did with Clinton's nominees.
As The Wyeth Wire points out (with great quotes from Scalia and Rehnquist, definitely check it out), one of the most strange things about Estrada (and Thomas before him) is the claim that these judicial nominees do not have preconceived notions about particular issues or past cases. This is, of course, ridiculous. They studied law, they have opinions, it is not a crime. Being an impartial arbiter of the law does not require that you come to the bench without personal opinions, it requires that you endeavor to put those opinions aside when making decisions from the bench.
It reminds me a bit of one of Michael Sandel's attacks on the liberalism of John Rawls, that "liberalism is wrong because neutrality is impossible" and "try as we might we can never wholly escape the effects of our conditioning." While this latter point is undoubtedly true, it misses the point. As Robert Brown has said, "To be neutral is to be non-aligned and unengaged only under certain conditions and only... with respect to the application of the rules relevant to the contenders within a particular sphere of authority."
What both sides agree on is that individual actors will obviously carry their own opinions and preconceptions with them, the very point Estrada and his defenders deny. Where they go wrong, however, is not just in thinking that judicial nominess can be without preconceptions, but that they should. The point Brown makes fits nicely here. It is no attack on our judicial system to say that judges have preconceptions and personal opinions. It is an inevitable truth. They must merely know how to set those aside when applying the rules in their sphere of authority.
UPDATE: Wyeth linked to it, but I'll also recommend reading Kinsley's excellent take on the situation.
