Nominee for Court Faces Two Battles
Senate
Panel to Focus on Ideology, Immigrant Past
By Charles Lane
Washington Post Staff Writer
Tuesday,
September 24, 2002; Page A01
From http://www.washingtonpost.com/wp-dyn/articles/A57751-2002Sep23.html
When the Senate Judiciary Committee convenes Thursday for a hearing on President Bush's choice to sit on the powerful U.S. Court of Appeals for the D.C. Circuit, the nominee will bring with him not only a glittering legal résumé but also a story of immigrant success.
Forty-year-old Washington lawyer Miguel Estrada earned academic honors at Columbia and Harvard and served as a law clerk to Supreme Court Justice Anthony M. Kennedy. He has worked both as a federal prosecutor and as an assistant solicitor general of the United States. He has won two-thirds of the 15 cases he has argued before the Supreme Court, and he played a key supporting role on Bush's team of conservative legal all-stars who won the 2000 presidential election case. Supporters say these achievements are especially remarkable for someone who, at 17, arrived in the United States from his native Honduras speaking limited English.
If confirmed for the D.C. Circuit, Estrada would become the first Hispanic judge in the court's history, and, as such, perhaps the most influential Hispanic jurist of his generation.
Yet far from looking like a triumphal moment for Estrada, Thursday's hearing is shaping up as possibly the most contentious public event yet in a long, tense struggle over his nomination.
To veterans of the increasingly rancorous judicial nomination process, the fight over Estrada's appointment has a familiar ring. Senate Democrats and liberal interest groups say Estrada represents the latest Bush administration attempt to "pack the courts with people who will roll back critical rights and protections," in the words of Nan Aron, president of the liberal Alliance for Justice. Republicans accuse Estrada's opponents of trying to block a well-qualified lawyer because he does not conform to their ideology.
But the added element of ethnic politics makes the Estrada nomination more than just another skirmish in the battle for control of the lower courts: If confirmed, Estrada would immediately become a leading candidate to be named the first Hispanic on the Supreme Court. Such a historic appointment could help Bush not only tilt the high court to the right, but also make political gains among the fast-growing ranks of Hispanic voters.
Leading Republicans are blunt about their view of the political stakes. Democrats "are afraid Bush will nominate him to the Supreme Court where he won't toe their left-of-center line," said Sen. Orrin G. Hatch (R-Utah), the ranking Republican member of the Judiciary Committee.
The nomination has divided not only the Senate but also leading Hispanic organizations. Some hail the appointment as a breakthrough for a group that is underrepresented on the federal bench. Others portray Estrada as an acid-tongued conservative who is out of touch with the major concerns of Hispanics and other minorities.
In a real sense, the argument is a dispute over the meaning of Estrada's life story.
Just as the first Bush administration praised Clarence Thomas for his rise from humble origins in Pin Point, Ga., the current Bush administration presents Estrada as the epitome of the self-made Latino immigrant.
"Miguel Estrada is an extremely bright person of strong convictions, and he has a great story," White House counsel Alberto Gonzales said. "He shows what is possible in this great country."
But to Estrada's critics, especially some of those in Hispanic civil rights organizations, his is the career of a successful minority who has put down only shallow roots in his ethnic community; he belongs to no Latino organizations.
In a blistering six-page statement opposing the Estrada nomination, the Puerto Rican Legal Defense and Education Fund (PRLDEF) said recently that Estrada "has lived a very different life from that of most Latinos -- a life isolated from their experience and concerns."
Neither side's case is free of overstatement.
Estrada's success in the United States could be seen as the extension of his upbringing amid relative comfort and high academic expectations in Honduras, one of the poorest countries in Latin America. His father, Jesus Maria Estrada, who died in 1997, was a prominent and politically conservative lawyer who helped found the country's first private university. Estrada's mother, Clara Argentina Castañeda Batres, a successful accountant, is the daughter of a teacher-diplomat.
Estrada could read and write by the age of 5. He used to stand by the window of a school near his home, shouting out answers to the first-grade teacher's questions until she relented and asked Estrada's father to enroll him, according to a profile of Estrada published recently in the Honduran newspaper El Heraldo.
Later, at the San Francisco Institute, an elite Catholic academy in a residential area of Tegucigalpa known as Country Club, Estrada was an academic standout remembered by friends and teachers for winning a poetry reading contest and the 1976 Honduran national science fair -- his project was a homemade seismograph.
Arturo Corrales, a high school friend of Estrada's who later became the presidential candidate of Honduras's small left-of-center Christian Democratic Party, said Estrada's conservative views were already evident in their teenage debates. Estrada would praise the United States for its strong local government and free market system, and needle his friend when he defended the idea of a more European-style "social market economy," Corrales said.
Their only point of agreement, was abortion: He and Estrada agreed that it was morally "wrong," Corrales recalled. But the two Catholic school students never talked about whether abortion should be illegal, Corrales said.
Yet if Estrada was relatively privileged economically and socially, he faced personal obstacles. Estrada's mother left for the United States in 1969 amid a bitter divorce and child custody battle with his father -- she took Estrada's sister; Estrada, then only 8, stayed with his father.
Estrada would not see his mother and sister again until 1974, when he visited her for the first time in the United States. He saw her only two more times before he immigrated to the United States in 1978 against his father's wishes.
Though some backers have suggested Estrada spoke no English when he came to the United States, he actually possessed a rudimentary grasp of the language. Upon his arrival, Estrada's mother and sister conducted a crash course for him, and soon, his skills were adequate to earn a B- in English composition at the State University of New York at Old Westbury, where he spent his freshman year before transferring to Columbia.
He has attained excellent oral advocacy abilities in his second language despite a lifelong struggle with a speech impediment.
Friends say the experience of adjusting to life in the United States reinforced the conservative tendencies Estrada brought with him. In discussing such issues as affirmative action, they say, Estrada appeared influenced by the feeling that he and, before him, his mother had succeeded on their own in the United States, and that others should be able to follow suit.
In a 1998 remark quoted in a USA Today article about the lack of minority Supreme Court clerks, Estrada said, "If there were some reason for the underrepresentation, it would be something to look into . . . but I don't have any reason to think it's anything other than a reflection of trends in society."
An irony of the Bush administration's use of Estrada's appointment to score points with Hispanic voters, Estrada's friends and former colleagues say, is that the Estrada they know would be uncomfortable with the idea.
"He's an extremely proud person who would be offended by any of us thinking of him in a certain category," says Paul Cappuccio, a Harvard Law School classmate who is now executive vice president and general counsel of AOL Time Warner.
Unlike previous Bush nominees who have had to answer tough questions about their writings as legal scholars or lower-court judges, Estrada's career binds him to no particular paper trail. Most of his work consisted of helping to formulate or advocate the legal positions of others: judges, the federal executive branch or private clients.
Those who have known him during his decade and a half in the law offer conflicting views of his open-mindedness, temperament and other more intangible qualifications for the federal appellate bench. They agree that Estrada is politically conservative but are divided over just what kind of conservative he would be on the court: an activist who infuses rulings with his ideology or a restrained jurist who heeds the role of precedent.
The American Bar Association has pronounced Estrada "well-qualified," and several distinguished lawyers, including a number of Democrats, have written letters of endorsement.
One of his most avid supporters is Ron Klain, former chief of staff to Vice President Al Gore, who knew Estrada when both were Supreme Court law clerks.
"I think Miguel Estrada takes the law very seriously. He's a very independent thinker and confident enough to come to his own conclusions, and won't just follow along with the Republican herd," Klain said.
As evidence of Estrada's flexibility, supporters note that, despite his career on the government's side of criminal cases, he took on a Virginia death row inmate's case pro bono in 1999, arguing unsuccessfully before the Supreme Court that the man should get a new trial because he had been denied access to information that would have cast doubt on key evidence against him.
However, privately, many of those who have known Estrada over the years, describe him as an acerbic ideologue who likes to pick fights at the office over political issues and does not suffer fools gladly.
"He has a very intellectual kind of snideness of the kind you see on the Wall Street Journal editorial page," a former colleague says. "I don't think I ever heard him utter a compassionate phrase about someone he was prosecuting."
As evidence of Estrada's reflexive pro-prosecution views, they cite his membership on the board of the Center for the Community Interest, a New York-based nonprofit that advocates tough anti-crime measures, such as anti-loitering ordinances, that Latino civil rights groups have opposed as unfair to minorities.
At the solicitor general's office, Estrada clashed with Paul Bender, a liberal Clinton administration political appointee who served as principal deputy solicitor general.
"I think he lacks the judgment and is too much of an ideologue to be an appeals court judge," Bender told The Washington Post last year. Bender declined to comment for this article.
Meanwhile, though, other former Clinton administration officials, including the respected former solicitor general Seth A. Waxman have stepped forward to say they disagreed with Bender's assessment of Estrada. Last week the White House released excerpts from performance reviews of Estrada's work at the solicitor general's office, signed by Bender, that described Estrada as "outstanding."
Estrada was originally nominated in May 2001. But after control of the Senate switched to the Democrats, some Hispanic organizations skeptical of the nomination prevailed upon Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) to delay Estrada's hearing to permit interest groups and Democratic staffers more time to comb his background.
Some of those involved in the effort say their concerns about Estrada's temperament and ideology have been confirmed, but concede that they have turned up no bombshells.
Democrats on the Judiciary Committee are still seething over what they regard as the Republicans' unfair blocking of President Bill Clinton's nominees for the D.C. Circuit -- as well as several of his Hispanic nominees for other courts -- when the GOP controlled the Senate.
"If the White House had looked a little harder and were not so focused on packing the circuit court bench with a narrow ideology, it could have found many qualified nominees," Leahy said, citing the names of three Clinton appointees whose nominations died in the GOP-controlled Senate.
With Republicans gearing up to use the hearing to emphasize Estrada's immigrant success story, Democrats are expected to turn the session into an examination of his ideology and temperament.
But Democrats must proceed gingerly with Estrada to avoid the risk of offending Hispanic voters themselves. For the Democrats to vote him down on ideological grounds, absent solid evidence he is unfit for the court, "would be a huge mistake -- it'll backfire on them," says Brent Wilkes, executive director of the League of United Latin American Citizens (LULAC), which has endorsed Estrada.
LULAC is one of several Hispanic groups, including the Hispanic National Bar Association and the Cuban-American National Foundation, to argue that Estrada is a qualified Latino and that he can serve as a role model for others.
"I definitely think he's not supportive of affirmative action, but I don't think any Bush nominee would be," Wilkes said. "We don't want to shoot down their only Hispanic nominee, just to get a white conservative in his place."