Asked whether the Constitution evolves over time, the nominee to the U.S. Court of Appeals for the District of Columbia Circuit told the Senate Judiciary Committee that, while such debates were interesting, "as an appellate judge, my obligation is to apply precedent." Asked whether he favored capital punishment, a nominee said only that the death penalty's constitutionality was "settled law now" and that he didn't "see any way in which [his] views would be inconsistent with the law in this area."

Miguel Estrada, one of President Bush's nominees to the D.C. Circuit, is facing a filibuster by Democratic senators who claim that his refusal to address their questions at his hearing -- combined with the White House's refusal to release his memos from his days at the solicitor general's office -- makes him an unreadable sphinx. Yet the careful answers quoted above are not Estrada's. The first was given by Judge Judith Rogers at her hearing in 1994, the second by Judge Merrick Garland the following year. Both were named to the bench by President Clinton. Neither was ever accused of stonewalling the committee. And both were confirmed.

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The real difference between Estrada's questioning and that of Garland and Rogers is not that Estrada held back. It is that Garland and Rogers faced nothing like the inquest to which Estrada was subjected. Both, along with Judge David Tatel -- the other Clinton appointee now on the court -- faced only a brief and friendly hearing. And none was pushed to give personal views on those matters on which his or her sense of propriety induced reticence. To be sure, there was no controversy surrounding the fitness of any of the Clinton nominees, so the situation is not quite parallel. When Garland, a moderate former prosecutor who had recommended the death penalty, said he could apply the law of capital punishment, there was no reason to suspect he might be shielding views that would make him difficult to confirm. By contrast, many Democrats suspect that Estrada's refusal to discuss Roe is intended to conceal his allegedly extremist views. But that only begs the question of why Estrada is so controversial in the first place that Democrats think it appropriate to demand that he bare his judicial soul as a condition of even getting a vote. Nothing about his record warrants abandoning the respect for a nominee's silence that has long governed lower court nominations.

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