The dispute over confidential legal memorandums written by judicial nominee Miguel Estrada intensified last week.
An influential Republican senator is disputing a key argument that Senate Democrats have used in seeking to obtain the documents. Democrats say they need the documents to learn more about Estrada before scheduling a vote on his nomination to the U.S. Court of Appeals for the D.C. Circuit.
At Estrada’s Sept. 26 hearing, Sen. Charles Schumer (D-N.Y.) said that while considering the 1984 nomination of Frank Easterbrook to the 7th Circuit, the Judiciary Committee got access to similar memos Easterbrook had written for the solicitor general in the 1970s. Estrada was in the SG’s office for five years in the 1990s.
Schumer placed three documents from Easterbrook’s days at the SG’s office into the Estrada hearing record.
But in an Oct. 1 letter to Schumer, Sen. Orrin Hatch (R-Utah) pointed out that only one of the documents, a two-page memo, was written by Easterbrook. Hatch also said the written record of the Easterbrook nomination contained no mention of any such documents.
In the letter, Hatch asked Schumer to explain “the manner in which the Committee came to possess” the documents. A source close to the Estrada nomination says Capitol Hill Republicans strongly suspect that the Easterbrook documents, which deal with school desegregation cases, were leaked to the committee by Justice Department staffers and were not formally turned over by the Reagan administration.
Judge Easterbrook, who sits on the Chicago-based 7th Circuit, declines comment. Phil Singer, a spokesman for Schumer, did not return several calls last week.
Moreover, the administration is preparing a letter to Schumer responding in detail to his request. The letter, according to two sources close to the nomination, will likely continue the administration’s blanket refusal to give Democrats access to the memorandums. That letter will probably be sent this week.
In a related matter, a Judiciary Committee vote on the nomination of U.S. District Judge Dennis Shedd for the Richmond-based 4th Circuit was postponed last week until Oct. 8.