In the strictest sense, judges do make law. Translating poorly written or ambiguous statutes and constitutional clauses into the real world is, in any intellectually honest world, "making law." Frankly, the state of the law benefits from sharp confrontation between appellate judges. Say what you will about the reversal rate of the Ninth Circuit: Supreme Court opinions in cases that came from the Ninth Circuit are generally better written and clearer in their holdings than those coming from less diverse circuits such as the Fourth and Fifth. Leaving aside whether I think, in my arrogance (nothing not-so-humble about it), the Supreme Court gets things "right" when it reverses more "liberal" opinions coming out of the Ninth Circuit, the clarity of its opinions—even when it is affirming the Ninth—benefits from the controversy and give-and-take on that Court of Appeals.
What distinguishes the Ninth Circuit from other relatively diverse circuits, such as the Sixth, is that personal animosity among the judges in that least-collegial (if only due to sheer numbers) of circuits is rather muted, and seldom reaches the public eye. Judges Reinhardt and Kosinski could hardly be farther apart politically, and each feels free to criticize the other's opinions; but there has been no apparent nonsense such as that in the Sixth Circuit, which at the moment is badly broken due to internal warfare among the judges stemming from the handling of the Gratz and Grutter cases (the two University of Michigan affirmative action cases).
With that in mind, what to do about the actual nominations? As a litigator, and particularly one who spends a lot of time dealing directly or indirectly with appellate issues, I would much rather have a smart, intellectually honest judge whose politics do not match mine very well than I would a judge whose mind is politically closed—even if her politics and mine match. The kind of work I do requires a much longer view than that of many litigators. I don't often handle simple commercial matters, or simple application-of-bad-law-to-bad-facts matters related to ERISA. Thus, I am concerned not just with winning in the trial court, but in getting either a defensible opinion if I won or an attackable opinion if I did not. I then want a clear opinion from the appellate court, and preferably a well-reasoned one. Ironically, it is a lot easier to overturn a well-reasoned opinion through the legislative process than it is a poorly reasoned one—at least in my experience, which while not vast is considerable.
Thus, even though I do not agree with Mr. Estrada's particular positions, I have no problem with allowing him to be confirmed as a federal judge. However, because Mr. Pryor's past raises grave doubt as to his ability to clearly express opinions, to be intellectually honest on the bench, and to work with colleagues with whom he disagrees, I would not at this time vote to confirm him, or even to move his nomination to the Senate floor. That the latter has happened is an excellent demonstration that I am not a Senator.