After Estrada
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The withdrawal yesterday of Miguel Estrada from consideration for a seat on the U.S. Court of Appeals for the D.C. Circuit is a loss for the federal bench. Mr. Estrada would have made a fine judge. But the costs of the Estrada episode will be felt for years, and they go beyond the matter of one circuit court or one talented lawyer’s career. In demanding that the executive branch disgorge privileged memos written while Mr. Estrada was a Justice Department lawyer, the Democrats in the Senate did their part to erode the attorney-client privilege for the president of the United States — a move that they may well come to regret one day when the Democratic Party controls the White House. They also established the precedent that a judicial candidate who can’t muster at least 60 votes is unconfirmable — another move they may well come to regret the next time they are the ones nominating judges. The increased importance of a 60-vote supermajority in the Senate — needed to cut off a filibuster of the sort that scuttled Mr. Estrada — means that more national money will pour into Senate races. New Yorkers can know, for better or worse, that our own senators played a big part in stopping Mr. Estrada’s accession. Mr. Estrada’s own statements during his confirmation struggle were constrained by longstanding tradition. But it wouldn’t be interpreted as sour grapes if he were to come to New York and help explain to the citizens of the Empire State exactly why Senators Schumer and Clinton were wrong to oppose him. It could, in fact, be at least one way — perhaps the only way — that the Estrada episode would reverberate for the best.