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Why Estrada is being held back


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Peter Kirsanow

“McCarthyism” has become a hallowed term for many liberals. It’s a charge usually leveled against conservatives, for ostensibly engaging in unfair attacks against those holding disfavored viewpoints. Yet its most enthusiastic practitioners are not found on the right.

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The Miguel Estrada affair is the latest example of a form of “McCarthyism” practiced by the Left that vilifies any apostate minorities even suspected of embracing conservative positions. (While the battle over the Supreme Court nomination of Clarence Thomas was the most spectacular display of this phenomenon, the political landscape is littered with others.)

His opponents have described Estrada as “inauthentic” and “Hispanic in name only,” an attack on his racial bona fides. Conservatives would obviously have been excoriated for playing the race card in this fashion, but liberals have mostly gotten a pass. For example, Benjamin Wittes, writing in the Washington Post, took note of the starkly different standard to which Estrada was being held — but after navigating maddeningly close to the reason for it, contented himself with wondering “why Estrada is so controversial in the first place.” On the Sunday news shows, legions of Republicans have complained that Estrada is being subjected to a double standard but have generally refrained from commenting on the reason for it.

One of the few exceptions has been Sen. Orrin Hatch, who has been much more blunt: The different treatment, he said, is due to race. The fast, furious, and indignant responses to Hatch’s assertion may be a measure of its accuracy.

But was Hatch right? Or only half-right?

The best way to determine whether Estrada is being treated differently on the basis of race is to compare him against similarly situated nominees to the federal courts of appeal.

By now, Estrada’s background and qualifications are legendary — the quintessential American success story. The Honduran immigrant graduated with honors from Columbia University and Harvard Law School (where he was an editor of the law review). He clerked for Supreme Court Justice Anthony Kennedy and performed magnificently as a deputy solicitor general of the United States. Estrada then became a partner at Gibson, Dunn & Crutcher, one of the nation’s premier law firms. He has argued 15 cases before the Supreme Court. The unanimous opinion of everyone who knows him is that he is brilliant.

In short, a virtually perfect résumé for a federal appellate-court nominee.

Some Senate Democrats are contending, however, that Estrada has no judicial experience. If that were a disqualifying factor, Chief Justice William Rehnquist would never have been confirmed to the Supreme Court. A number of outstanding federal appellate court judges had no judicial experience prior to their respective nominations. In fact, five of the judges on the court to which Estrada was nominated had no previous judicial experience.

Estrada’s qualifications are clearly equal, if not superior, to those of other nominees. Has he been treated differently than similarly situated comparatives? Without question.

Contrary to the charge of many Senate Democrats that Estrada failed to provide answers to questions at his hearing, he in fact patiently answered nearly 150 oral and written questions — far more than the typical appellate court nominee. He declined to answer only those questions that improperly sought to discern how he would decide specific cases that might be brought before him. (He also offered, through the White House, to answer more, but no senators took him up on it.) More significantly, Estrada’s nomination to a federal appellate court is the first in U.S. history to be the subject of a filibuster.

But is the disparate treatment based on race or national origin? The fact that similarly situated Hispanic nominees considered to be liberal were not required to run the gauntlet placed before Estrada suggests that race alone is not the reason for his travails. Indeed, several white appellate-court nominees presumed or known to be “conservative” also struggled through the confirmation process. Other white “moderate” nominees sailed through relatively easily. The difference is that in the end, all were confirmed with nary the thought of a filibuster.

It therefore seems that a concept known to employment lawyers as “mixed motive” is at work here. That is, Estrada is not being discriminated against solely because of his race nor solely because of his presumed political ideology — but rather, because of a combination of both. Throw in the fact that he was nominated for the court widely viewed as a springboard to the Supreme Court, and the confirmation battle goes nuclear.

My colleague, Jennifer Braceras, maintains that “Democrats like their minorities dumb and malleable.” Miguel Estrada is neither. But that’s still not his chief offense. What has caused all the controversy is that this supremely gifted candidate is suspected of harboring conservative sympathies.

— Peter N. Kirsanow is a member of the U.S. Commission on Civil Rights.



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