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September 27, 2002 9:15 a.m. Democrats Ambush Estrada The president’s nominee didn’t appear to know what hit him.

here were a lot of happy Republicans in Room 106 of the Dirksen Building after the morning session of the Senate Judiciary Committee's confirmation hearing for Miguel Estrada, President Bush's high-profile choice for a seat on the U.S. Court of Appeals for the District of Columbia. Things had gone well, GOP officials thought. Committee Democrats, as expected, had nothing to throw at Estrada.

Well, a few things, but no surprises. Chairman-for-the-day Charles Schumer complained that the Justice Department has refused to release internal position papers Estrada wrote while serving in the Solicitor General's office during the Clinton administration. Schumer asked Estrada to urge the department to release the papers. "I hope you'll do so," Schumer said, "because from what I know thus far, I have to say that I would be reluctant to support moving your nomination until we see those memoranda."

Schumer also brought up the criticisms of Paul Bender, Estrada's former boss in the Justice Department, who told the Los Angeles Times that Estrada is so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way." "As you know, a former supervisor of yours in the Office of the Solicitor General, has stated that you are too much of an ideologue and do not have the temperament to merit confirmation," Schumer told Estrada. "You will be given a full opportunity to address those arguments."

Republicans had effective rebuttals on both fronts. On the Justice Department memos, they had a letter from all seven living former Solicitors General — everyone from Archibald Cox to Seth Waxman — saying that the release of such internal deliberative documents would be a terrible idea. And even though Democrats claimed there was ample precedent for such memos to be made public, Republicans did a quick midday recheck of the records and decided they were on firm ground saying no.

As for Bender, Orrin Hatch, the ranking Republican on the committee, laid out the rather devastating counterargument that Bender, whatever he is saying now, had given Estrada glowing performance evaluations while at the Department. "States the operative facts and applicable law completely and persuasively...with concern for fairness, clarity, simplicity, and conciseness," read one Bender evaluation. "Is extremely knowledgeable," read another. "Inspires co-workers by example," read a third." The old evaluations pretty much drained the credibility from Bender's new assessment of Estrada.

So Republicans felt pretty good after the first few hours of the hearing. But most did not seem to realize that while they were worrying about Bender and the documents, Democrats had ambushed Estrada from an entirely different direction, hitting him with questions designed to catch him in a lie about new allegations aimed at him by un-named former associates. After lunch, the Democratic attack intensified, and Republicans knew something had gone terribly wrong. While GOP senators mostly watched, Schumer and his colleagues managed to turn the new allegations, contained in a couple of anonymous quotes published in a small left-wing magazine, into a serious obstacle for one of President Bush's premier judicial nominees.

A STEALTH MISSILE
Schumer was the first to question Estrada. He spent most of his time on the Justice Department-documents issue, but in his last few minutes veered off toward another topic. Estrada had been a clerk for Supreme Court Justice Anthony Kennedy, Schumer said, and sometimes gave Kennedy advice in selecting clerks — was that right? Yes, that was true, Estrada said. "You attempted to block liberal applicants" from becoming clerks," Schumer then said, and began reading a long, carefully worded question: "Have you ever told anyone that you do not believe any person should clerk for Justice Kennedy because that person is too liberal, not conservative enough, or because that person did not have the appropriate ideology, politics, or judicial philosophy, or because you were concerned that person would influence Justice Kennedy to take positions you did not want him taking?"

Anyone who has spent much time at Judiciary Committee hearings could see the question was unusual. Instead of meandering around a topic, ad-libbing his comments, and finally homing in on a question, Schumer read the question from a piece of paper. It had been prepared in advance, was very carefully worded, and sounded like something one might hear in a contentious legal deposition. Something was clearly up. The question was a setup, designed to trip Estrada, and perhaps catch him in a lie.

Although he did not fully explain it at the time, Schumer's question was based on allegations published in the October 7 issue of the left-wing journal The Nation. The piece had been out for several days. Republicans knew about it; they had actually e-mailed it among themselves because they were so amused at a quote Schumer had given the magazine. Estrada, Schumer was quoted as saying, "is like a Stealth missile — with a nose cone — coming out of the right wing's deepest silo."

But in their chuckling over Schumer's over-the-top assessment of the nominee, Republicans failed to pay sufficient attention to another part of the piece. "Perhaps the most damaging evidence against Estrada," author Jack Newfield wrote, "comes from two lawyers he interviewed for Supreme Court clerkships."

Both were unwilling to be identified by name for fear of reprisals. The first told me: "Since I knew Miguel, I went to him to help me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. Miguel told me, 'No way. You're way too liberal.' I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. When I asked him why I was being ruled out without even an interview, Miguel told me his job was to prevent liberal clerks from being hired. He told me he was screening out liberals because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in a case known as Romer v. Evans, which struck down a Colorado statute that discriminated against gays and lesbians."

I also interviewed a young law professor and former Justice Department attorney who told me a very similar story. "I was a clerk for an appeals court judge," the professor told me, "and my judge called Justice Kennedy recommending me for a clerkship with him. Justice Kennedy then called me and said I had made the first cut and would soon be called for an interview. I was then interviewed by Miguel Estrada and another lawyer. Estrada asked most of the questions. He asked me a lot of unfair, ideological questions, a lot about the death penalty, which I told him I thought was immoral. I felt I was being subjected to an ideological litmus test. Estrada was being obnoxious. He was acting like it was his job to weed out liberal influences on Justice Kennedy. I was never called back by anyone."

When Schumer asked his question, based upon the Nation article, Estrada seemed unprepared to answer. Had he ever told anyone that he did not believe any person should clerk for Justice Kennedy because that person is too liberal? "I don't believe I have," Estrada said. Later, searching for a better answer, he gave a more definitive no.

The whole exchange didn't last very long, and the hearing moved on to other issues. Orrin Hatch made the case for keeping the Justice Department documents secret. Committee chairman Patrick Leahy went relatively easy on Estrada. Edward Kennedy got a little testy, but Herbert Kohl was not too challenging.

Then Dianne Feinstein asked a few questions. She began, as always, with Roe v. Wade, but moved on to the Nation article. She read from the magazine and then asked: "Did this happen?"

"Justice Kennedy picks his own clerks," Estrada answered. "As far as I know, unless it was a very bad joke that I have forgotten, the answer is no."

And that was that. Feinstein moved on to a few other things, everyone broke for lunch, and most observers seemed to think the hearing — touted by some as potentially the most vicious judicial confirmation of the Bush administration — had been surprisingly quiet. "Through the morning I was happy," says one Republican. "I thought they scored no points."

SOME CREDIBILITY PROBLEMS
Although many Republicans didn't seem to realize that the clerks question was a serious challenge, Estrada himself seemed to sense that something was up. When the hearing resumed, he told Schumer he would like to add to his earlier answers. First Estrada said he should have challenged the story's premise that a Supreme Court Justice "can be moved one way or the other by 23 year olds." Then he began to backtrack on the story itself.

"There is a set of circumstances in which I would consider ideology" when evaluating prospective clerks, Estrada said. He would do that, Estrada explained, "if I think that the person has some extreme view that he would not be willing to set aside in service to Justice Kennedy."

Schumer sensed an opening. He repeated his densely worded question. "Have you ever told anyone that you do not believe any person..." Estrada discussed how he approached the task of helping select Supreme Court clerks. Schumer read the question, in full, again. And again. "The question is not what your thought process is," Schumer said. "I'll give you one more chance." And then he read the question yet again. Estrada said "it is possible" that he may have come to such a conclusion about a clerk candidate.

Later, Schumer pressed even more. "You denied it unequivocally" in the morning session, he told Estrada, and now you're softening. Did you say that to the prospective clerk? "Yes or no," Schumer said. "This does not take a peroration. This takes a yes or no answer if you're being truthful with this committee."

At that point, Republicans seemed to wake up. An agitated Orrin Hatch jumped in. "Wait a minute, wait a minute — "

"Let's let the witness answer," Ted Kennedy said.

"I asked a yes or no question," said Schumer.

"It's not a yes or no question," said Hatch.

"Yes it is," said Schumer.

"It's a very unfair question," said Hatch. "First of all, the person isn't known. He's anonymous." Hatch explained how the committee had years ago stopped using the word of anonymous accusers against judicial nominees.

Estrada waited as the senators argued and then tried again to explain. "What I've been trying to say is I don't know every conversation that I've ever had with every person in my life," he said.

"Are you retracting your answer this morning, when you said no?" Schumer asked.

At that point, worry showed on every Republican face. Staff began huddling. Some Department of Justice officials headed purposefully from the room. Estrada kept trying to explain.

Finally Schumer stopped him. "I think we have some credibility problems here," Schumer said, setting off murmuring around the room.

Hatch jumped in again. "This is really offensive," he said. "He's being very badly treated by this committee."

"I think the question was completely in bounds," Schumer said. "It was in a published magazine article."

"Who cares?" Hatch said.

"I think these questions are on point," Schumer said, and the hearing moved on.

AN ISSUE OUT OF NOTHING
After another break, Hatch attempted a little damage control. The unsuccessful clerk candidate who spoke to The Nation, whoever he is, is simply bitter, he said. "This person is just griping because they didn't get the job," Hatch said. Besides, Estrada had simply been trying to find the best people. "You didn't want people on either extreme?" Hatch asked Estrada.

"That's right," Estrada answered.

"Do you feel that you were fair?"

"Absolutely."

"I don't want you in a game of gotcha here," Hatch said.

But Estrada was in an awful game of gotcha, and seemed completely unprepared for it. By the end of the day, his nomination appeared to be in terrible shape, all because he was not ready to give a clear and consistent answer to a question that could have been anticipated before the hearing began.

What made the situation all the more galling for Republicans was that the Estrada battle, which before the hearing appeared to be a fight about nothing, still appeared, after all the courtroom-style grandstanding, to be a fight about nothing. With no issues of any substance to use against Estrada, Democrats had, in what even Republicans conceded was a masterful job of prosecutorial sleight-of-hand, invented an issue out of whole cloth. "They didn't have anything on him," says one Republican. "By the time they walked out, they had made an issue out of nothing." And Republicans weren't ready for it.

Perhaps it was unfair. Perhaps it was an outrage. But it should not have been a surprise.