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NOMINEE NIGHTMARE

A Wake-Up Call
We failed Miguel Estrada and allowed Senate Democrats to erect a glass ceiling.

BY VIRGINIA THOMAS
Friday, September 5, 2003 12:01 a.m.

Not only is this a sad day for Miguel and Laurie Estrada, but we have all let something unfortunate occur in Washington. We allowed the U.S. Senate to erect a "glass ceiling" in our courts--you can do all the right things in America, but if you do not agree with Ted Kennedy and Hillary Clinton, you need not apply as a federal judge. This is the message that Democrats hope minorities, in particular, get from their victory as they succeeded in repelling a talented man, who happens to be Hispanic, from public service. For the hard left, Miguel Estrada was not qualified to be a federal judge because he would not march to their drumbeat.

A familiar stench is coming from the liberals in the Senate when it comes to judicial confirmation battles. A process that only a few years ago used any charge--true or untrue--to take down an ideological opponent or nominee now needs no such proxy. Instead, U.S. senators, who happen to be Democrats, audaciously mimic the rhetoric of far left groups by claiming that "ideology can be a disqualifier" from public service. Theirs is a strict orthodoxy that doesn't tolerate dissent, especially from minorities. Law is rarely ideological. Concern for the rule of law, victims' rights, due process, privacy, freedom of religion or even statutory construction is overruled by their orthodoxy.

At my husband's side through his Supreme Court confirmation ordeal, I know the personal toll and pain of these tactics. Being a nominee means putting one's life on hold. The process is all consuming, even though those in decision-making offices seem nonplussed. Your telephone rings. You learn that there are people calling your friends, family members, neighbors and co-workers who are engaged in "digging up dirt." You spend untold hours filling out repetitive forms on every place you've lived, every place you've traveled, every contribution you've made, every word you've uttered, and so on.

You must surrender your economic and personal life to the will of the U.S. Senate and those who work with them--congressional staff, reporters and special interest groups. The U.S. Senate has a cadre of actors--some who act honorably and most who don't really care. But some people, many who are nameless and faceless, care very much and want to use your nomination for their agenda, their power, and their interests. You've never met them and even if you did, they really wouldn't care about your integrity or experience. They have their agenda and their fund-raising efforts to consider.

Your life may be held up by the desire of some senator to bring home pork to his state, to have his constituents meet with some policy-making official in the administration or some other seemingly inane matter that is totally irrelevant to your qualifications to be a federal judge. Interest groups who oppose you inflame their constituency groups with rhetoric of fear or allegations of extremism. Your financial records, legal records, library records, and video-rental records are scrutinized by your opponents. Their job? To advance a portrait of you that you or your mother would never recognize.

Your ability to live normally is impaired--impaired by the fear of small things being distorted out of proportion. Impaired by friends who mean well but who are talking with reporters or interest groups who don't. Impaired by sins of commission or omission in your life's history. Impaired by those who are angry they didn't get nominated and find talking with reporters an easy way to relieve frustration.

It becomes a life that is Kafka-esque. Miguel Estrada is not alone and he didn't get to this point in his career because you and I were exercising our political rights. He is at this point because we were too silent. We let others dominate Washington while we were taking our kids to school, going on summer vacations, playing sports or working out. A new barrier has been erected by the Senate Democrats and we let it happen.

Miguel's decision to withdraw his nomination should be a wake-up call for each and every one of us. In a survey sponsored by the Heritage Foundation and the Brookings Institution, Paul Light and I found that one out of every two candidates finds the process so unbearable as to entertain pulling out. We also found that 51% believe the process is embarrassing, and 66% found it to be an ordeal. When is enough enough?

Whether we are on the right or left, whether we are political or nonpolitical, each of us is partly responsible for Miguel's decision to withdraw his nomination. What did you and I do to discourage an honorable man who is mainstream and qualified from serving his country? It's not enough to look the other way as the left makes charges that go unanswered. Miguel Estrada is no extremist. It is the left that wants to capture the federal judiciary, as it claims is the goal of the right. I've seen this before--when those on the left accuse you of something they are guilty of themselves.

As I wrote previously on March 14, 2002, in this very space, the battle is whether there will be an independent judiciary or a liberal litmus test to transform our courts into another political branch. Miguel Estrada said yes to public service for 29 months; what did we do in that same time frame and what can we do now to help good people serve?


Mrs. Thomas is the wife of Supreme Court Justice Clarence Thomas.

Available online at: http://www.opinionjournal.com/editorial/feature.html?id=110003974

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