Lawrence Solum has an interesting theory about what's causing the Estrada confirmation battle - he basically argues that one important factor is that Republicans believe Estrada is more likely to follow the law and ignore his political ideology than the Democrats do.

My initial response is that, while this dynamic affects the debate, its not determinative in Estrada's case. It seems to me that Republicans likely believe ALL their nominees are more likely to follow the law than Democrats do. For example, Republicans generally believe Scalia doesn't make political decisions, while Democrats seem to believe that's about all he does. If I'm right about that, then its not confusion about Estrada's formalism (willingness to decide using only legal materials) that's the problem. Its confusion about how far right he is. But, so far as I know, there is no real reason to think Estrada is more conservative than other nominees. So either I haven't heard the facts showing Estrada is likely more conservative than other nominees (entirely possible), or Solum's post doesn't really explain the prime mover in the Estrada fight.

Having said that, I think his theory is very interesting and insightful. The only problem with it is that it explains too much to tell us what's happening with Estrada. What it's better at, I think, is explaining one reason why Democrats and Republicans are fighting more about judicial appointments now than they have before - Democrats have increasingly begun to see conservative judges as political in the same way Republicans have for years seen "activist liberal" judges as political, while Republicans have not followed suit. If that's right, the filibuster is here to stay.

UPDATE: Having re-read Solum's post more carefully, I find that I've discovered nothing. He'd likely agree with most of what I just said. Well - it was good for me to work through the implications anyway.
- posted by Tom Sawyer @ 4:05 PM