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Saturday, February 22, 2003, 12:00 a.m. Pacific
From: http://seattletimes.nwsource.com/html/nationworld/134639202_estrada22.html

Judgment call: Appellate nominee inflames Democrats

By Linda Feldmann
The Christian Science Monitor

Miguel Estrada, President Bush's nominee for the District of Columbia's federal appellate court, sits before the Senate Judiciary Committee's confirmation hearing in Washington in September.

WASHINGTON — Forget about Iraq, terror alerts and President Bush's proposed $674 billion tax cut. The real war in Washington these days centers on a Latino attorney nominated to a top federal judgeship — a battle royale that both sides agree foreshadows an even larger row over the next vacancy on the Supreme Court.

The Democrats are prepared to fight to the end, resuming their weeklong filibuster against Miguel Estrada when the Senate reconvenes Monday. In the process, their party and its liberal interest-group backers have embarked on a risky gambit.

If Estrada wins confirmation, "this will evaporate from anyone's memory in a few weeks," says David Garrow, a historian at Emory Law School in Atlanta. "But if the Democrats defeat him, boy are they handing Bush a campaign issue to use in the Hispanic community."

The battle has also exposed fault lines within the Latino community reminiscent of fallout among African Americans over the 1991 confirmation fight of Supreme Court Justice Clarence Thomas, a conservative African American.

Miguel Estrada, a Honduran-born attorney, has the kind of American-dream story that would seem to make him a shoo-in for confirmation: immigrant to the United States at age 17, graduate of Harvard Law School and a law-review editor, clerk for Supreme Court Justice Anthony Kennedy and now a partner in a law firm.

He also served in the Clinton administration's Justice Department, where his supervisor, then-Solicitor General Seth Waxman, praised Estrada as a "model of professionalism and competence." Ron Klain, the top legal adviser to former Vice President Al Gore, described him as "genuinely compassionate. Miguel is a person of outstanding character (and) tremendous intellect."

Hidden agenda?

A key concern for Senate Democrats is that because Estrada has not been a judge or a law professor, he has virtually no written record of opinions on key legal matters. During a Judiciary Committee hearing in September, he gave terse, often less-than-revealing answers to questions posed by the panel's Democrats. He promised to approach each case with "an open mind."

"Although we all have views on a number of subjects from A to Z, the first duty of a judge is to put all that aside," he said.

Such comments reminded some people of the words of Thomas who, during hearings in 1991 on his nomination to the Supreme Court, characterized himself as a blank slate who had "no ideology" to bring to the bench.

Once narrowly confirmed by the Senate, Thomas became an unwavering conservative.

If Estrada is confirmed as a lifetime member of the D.C. Circuit Court of Appeals, one step below the U.S. Supreme Court, many Democrats fear he will push that court further to the right and be poised for nomination to the Supreme Court.

Republican appointees dominate the Supreme Court and most of the 12 U.S. courts of appeals. And the few appellate courts that are closely split are likely to tilt to the right if Bush wins confirmation for a half-dozen pending nominees, beginning with Estrada, whom Sen. Charles Schumer, D-N.Y., terms a "stealth" conservative.

It's a prospect that alarms the Democratic Party's liberal core. Last week, these activists cheered as filibustering Democrats brought the Senate to a halt to thwart Estrada's confirmation.

It was the first filibuster over a judge since outgoing President Johnson tried to elevate his longtime friend, Supreme Court Justice Abe Fortas, to the court's chief-justice slot in 1968.

Democrats said they would not allow a vote on Estrada until the White House released legal memos he wrote during his five years in the Solicitor General's Office (Estrada's tenure there began during the administration of Bush's father and lapsed into President Clinton's first term). The Republicans have refused, arguing that to comply would inhibit open discussion in future Justice Department work.

A vote up for grabs

While the black vote is overwhelmingly Democratic, the Latino vote is more up for grabs. They are now the nation's largest minority, and both parties have been angling furiously for Latino support.

On opposite sides over Miguel Estrada's confirmation are Senate Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, left, and the panel's ranking Democrat, Sen. Patrick Leahy of Vermont. Democrats are expected to continue their filibuster on Monday.

Latino interest groups are divided on the Estrada nomination, with some arguing that as a judge he will not defend the civil-rights gains of minorities and others arguing that top U.S. courts need more Latino members.

Of the community's three most influential groups, each has taken a different position. The League of United Latin American Citizens, based in Texas, supports him; the Mexican American Defense and Educational Fund, in California, opposes him; and the National Council of La Raza, in Washington, has remained neutral.

Judicial confirmations have become a premier political battleground in Washington — going back, in fact, throughout the 20th century, but intensifying since Democrats defeated the Supreme Court nomination of Robert Bork. Under President Clinton, Republicans routinely stalled judicial nominations; under Bush, Democrats have turned the tables.

And since the Democrats lost control of the Senate in the last election, they feel the filibuster is their last political tool. The Republicans don't have the 60 votes needed to halt debate.

With their bare 51-seat majority in the Senate, "the Republicans believe they can do anything they want on their agenda," says Ralph Neas, head of People for the American Way, a liberal interest group that is planning an anti-Estrada media campaign. "It's the appropriate time to draw a line in the sand."

By blocking Estrada, "the Democratic leadership is giving voice to its massive base of labor, civil-rights, women's-rights, disability-rights, environmental, gay- and lesbian-rights groups," said Eleanor Smeal, president of the Feminist Majority.

A few Democrats, such as Sen. John Breaux of Louisiana, oppose such tactics.

"The country is on Orange Alert and people are stockpiling water and duct tape, and the Senate is talking about a filibuster on a guy with the top rating of the ABA," Breaux said recently, referring to the American Bar Association.

But Patrick Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, expresses his party's dominant view: "I was not elected to be a rubber stamp."

Estrada appears to be in a no-win situation. Most Democrats already believe he is an ultraconservative, in the mold of Supreme Court Justice Antonin Scalia. If Estrada's papers were released, Democrats would likely find points to buttress their view.

While Estrada's public record is thin, detractors say that in private, he can be acerbic and arrogant. At last year's hearing, Estrada conceded he used the word "boneheaded" when a lawyer for the Puerto Rican Legal Defense Fund questioned whether his experience reflected a Latino background.

Estrada said the question was "offensive" and deserved to be labeled "boneheaded."

Critics also question whether Estrada appreciates the interests of poor people — his family came from the Honduran elite — and say his conservative politics would color his decisions on the bench. They claim he has a low regard for hard-won civil-rights protections that benefit Latinos.

Rallying the troops

What's really happening, says a Republican Senate aide, is that the Democrats are getting hard-core party members revved up for the 2004 election. But what both parties have achieved is the further poisoning of the political atmosphere in Washington at a time of grave national concern, with possible war on Iraq looming and a war on terrorism keeping the population on edge.

"We're in a vicious cycle of payback," says Michael Gerhardt, a law professor at William and Mary College. "People in the Senate have long memories — both members and staff."

President Bush tried to keep up the pressure Wednesday by giving an interview to the Spanish-language Telemundo network, and vigorously urged senators to confirm Estrada.

Sen. Orrin Hatch, R-Utah, recently said Estrada's Democratic opponents were "anti-Latino," and brought howls from his liberal colleagues and from leaders of Latino organizations across the land.

Marisa Demeo, regional counsel for the Los Angeles-based Mexican American Legal Defense and Educational Fund, said Hatch failed to mention three Latinos nominated for judgeships by the Clinton administration whom Republican senators opposed. Those nominations — of Jorge Rangel, Enrique Moreno and Christine Arguello — were returned to Clinton without a hearing or vote.

Information from The Washington Post and Los Angeles Times is included in this report.

Copyright 2003 The Seattle Times Company


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