Estrada Fight's True Victor? Democracy

Senate Democrats and Republicans are still slugging it out over the nomination of Miguel Estrada to the U.S. Circuit Court of Appeals, yet another battle in a long-running political war over the makeup of the federal judiciary.

That fight has been described as a sorry spectacle, as disgusting and degrading and all kinds of other bad and nasty things. U.S. Sen. Orrin Hatch, chairman of the Senate Judiciary Committee, even warns that the system could be "irreparably damaged" if the battle over Estrada continues.

Such talk is baloney. What's going on in Washington is a wonderful thing, absolutely necessary and absolutely healthy. We are seeing the U.S. Constitution at work, producing a struggle between two branches of government -- Congress and the president -- that in the end should have a moderating influence on the third major branch.

Democracy in action -- ya gotta love it.

Estrada is no doubt fully qualified by training, intellect and experience for a seat on the federal bench. To the degree that Senate Democrats and liberal groups have questioned those qualifications, they are wrong and they probably know they are wrong.

Such dishonest contortions are deemed necessary, though, because in Washington it is considered bad form to admit what's really at stake in judicial nominations. Senators and lobby groups don't dare to openly debate the real issue in the fight over Estrada, which is his personal right-wing ideology, because doing so would expose as fiction the claim that all judges are nonpartisan, unbiased arbiters of the law.

In a perfect world, of course, that is what they ought to be. As Chief Justice John Marshall noted in a famous opinion released on Feb. 24, 1803 -- 200 years ago today -- the American republic is supposed to be a government of laws, not of men.

In that opinion, Marbury v. Madison, Marshall also asserted for the first time the power of the federal judiciary to review laws that have been passed by Congress and enacted by the president, and to declare those laws null and void if, in the judge's opinion, they violate the U.S. Constitution.

In other words, today is the 200th birthday, the bicentennial, of the modern American judiciary.

So I propose we give it a birthday present. I propose that we bring a little more honesty and a lot less hypocrisy to the process of judicial confirmations by publicly admitting what we all know to be true anyway: Ideology matters in a judge. It matters a lot, and it ought to be fair game in determining whether a judge is confirmed for a lifetime appointment on the bench.

The reason it matters dates back to the Marbury decision. After that case, it would be another half-century before the federal courts would again strike down a law as unconstitutional. Today, with a far more complex government operating in a far more complex world, the courts necessarily play a far more active role in trying to apply the deceptively simple principles of the Constitution.

If we are to remain what Marshall called a nation of laws, not of men, we need moderate, judicious, politically balanced minds to handle the task of applying the Constitution. The good news is, the Constitution provides just the mechanism needed to produce such judges, if only we are willing to use it. It gives the president the power to nominate, and as a check on that power it gives the Senate the power to confirm.

If the executive branch subjects potential nominees to ideological tests -- and nobody honestly disputes that it does -- then the Senate can and indeed must consider ideology in deciding whether to confirm that person.

In this case, Senate Democrats fear that Estrada may be more conservative than either Clarence Thomas or Antonin Scalia, two Supreme Court judges already at the fringe of mainstream judicial thought in this country. If that is true, those senators have the right -- indeed the obligation -- to continue to block his nomination.

Jay Bookman is the deputy editorial page editor at The Atlanta Journal-Constitution .