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November 27, 2001

Review & Outlook

Judicial Profiling

It's too bad Miguel Estrada never thought of doing a reverse Geraldo Rivera (formerly Rivers) and renamed himself Mike Smith. He'd probably be sitting on the federal bench right now. But Mr. Estrada, who was one of President Bush's first judicial nominations, can't even get a hearing from Senate Judiciary Committee Chairman Patrick Leahy.

The reason, as Mr. Estrada's detractors are only too happy to whisper, is his ethnic background. His nomination is being sidelined because he is a keen legal mind who happens to be Hispanic and therefore might someday become the first Hispanic member of the U.S. Supreme Court. Welcome to the world of judicial profiling, as practiced by the liberal majority in the U.S. Senate.

The 40-year-old Mr. Estrada is an American success story, a Honduran immigrant who taught himself English and went on to Harvard Law, where he was editor of the law review. He clerked for Supreme Court Justice Anthony Kennedy and worked as a deputy in Bill Clinton's Justice Department, where he argued cases before the Supreme Court. Seth Waxman, Mr. Clinton's Solicitor General, has only the highest praise for him.

Bush nominee

But in Pat Leahy's Senate, such credentials are a liability. They're so sterling they'd make it impossible for Senate Democrats to stand up and oppose Mr. Estrada if he ever did get a hearing. And that would mean confirming him to a seat on the D.C. Circuit Court of Appeals, the same court that has produced Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia. And the last thing Democrats want to confront is an able conservative Hispanic nominated for the High Court by a Republican President.

Mr. Leahy's spokesman says Mr. Estrada's hearing is being delayed because of the judge's "rigid ideological background." But if that's true, why not hold a hearing and then have an up or down vote? Mr. Leahy answered this question himself some years ago when GOP Senators were holding up Clinton nominee Sonia Sotomayor.

"What they are saying is that they have a brilliant judge who also happens to be a woman and Hispanic, and they haven't the guts to stand up and argue publicly against her on the floor," Mr. Leahy told the New York Times at the time. "They just want to hide in their cloakrooms and do her in quietly." Ms. Sotomayor was later confirmed with little opposition, but Mr. Leahy must have secretly admired Republican tactics.

Meanwhile, the D.C. Circuit is the court that will hear a majority of the habeas corpus petitions resulting from the war on terrorism. It is now down to eight active judges, but needs 10 to carry its workload. Chief Judge Douglas Ginsberg wrote Mr. Leahy in August that if two new judges weren't confirmed by Sept. 30, "the court will likely find it necessary to delay until next term hearing cases that would otherwise be argued and decided this winter and spring."

Mr. Leahy has since done nothing to advance the nominations of either Mr. Estrada or John Roberts, another Bush nominee to the D.C. Circuit. Mr. Roberts, who is white, is enduring his own form of judicial profiling. Democrats don't want to be seen confirming a white judge ahead of an Hispanic one. So the entire D.C. Circuit suffers.

This is all part of a larger pattern of judicial obstruction that has left 108 current vacancies on the federal bench. More than a third of those openings have been classified as judicial emergencies by the nonpartisan U.S. Judicial Conference. At the end of their first years in office, Ronald Reagan, George H.W. Bush and Bill Clinton all had at least 88% of their judicial nominees confirmed by the Senate. With only days to go before the Senate adjourns for the year, only 28% of George W. Bush's nominees have been confirmed.

In 1998, when there were even fewer vacancies, Mr. Leahy said that any week in which the Senate "does not confirm three judges is a week in which the Senate is failing to address the vacancy crisis." But now Mr. Leahy gets to screen the ethnicity and credentials of nominees, and on the evidence he'd rather keep a vital court understaffed than allow a qualified Hispanic on the bench.

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