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Estrada is, by all accounts, a legal whiz. Born in Honduras in 1961, he came to the United States when he was 17, learned English virtually overnight, and graduated with honors from Columbia University and then Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, served as an assistant U.S. Attorney in New York, and, from 1992 to 1997, worked in the Justice Department as an assistant to the Solicitor General. Since leaving government, he has been at the law firm Gibson, Dunn & Crutcher. After he was nominated by President Bush in May 2001, the American Bar Association gave him its highest-possible "unanimous well-qualified" rating. It's an impressive lawyer's resume, but it holds few clues as to how Estrada would rule as a judge. Unlike Charles Pickering, the rejected appeals-court nominee who had served more than a decade as a U.S. District Court judge, or Priscilla Owen, the rejected appeals-court nominee who had served seven years on the Texas supreme court, Estrada has never sat on the bench, and thus has no record of written opinions and courtroom decisions to examine. Unlike Michael McConnell, the appeals-court nominee who had a hearing last week, Estrada has not been a law professor or commentator, and thus has no record of academic articles and op-ed pieces to examine. Beyond glowing assessments of his qualifications, there is, in fact, not a whole lot for anybody to examine about Estrada. On the basis of little or no evidence, Democrats have decided that he is a far-right ideologue; New York senator Charles Schumer recently told The Nation magazine that Estrada "is like a Stealth missile — with a nose cone — coming out of the right wing's deepest silo." A Democratic Senate aide told the magazine that, "If he makes it to the circuit, then he will be Bush's first Supreme Court nominee. He could be on the Supreme Court for thirty years and do a lot of damage. We have to stop him now." But Democrats are in a bind. As much as they want to kill the Estrada nomination, they have no reason to do it. Certainly the fact that Estrada has never been a judge is not a good reason to vote against him. Plenty of other judges — Merrick Garland, David Tatel, and Harry Edwards are three examples, all nominated by Democratic presidents — have been confirmed to positions on the D.C. Circuit without prior judicial experience. The fact that he has no McConnell-like paper trail is no reason to vote against him; writing op-eds is not a qualification for the bench. And there appear to be no negative factors in his background. Given that, Democrats have been forced to venture farther afield than ever before to find some reason — any reason — to vote against Estrada. And at the moment, it appears they have decided to base their opposition on the following allegation: Miguel Estrada is a hothead. "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," reported the Washington Post on Tuesday. "'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.'" Perhaps there are "many" who have said that about Estrada. But so far, the only person who has said anything like that in public is a man named Paul Bender, who was deputy Solicitor General in the Clinton Justice Department. In April, Bender 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." Bender also told the paper, "Miguel is smart and charming, but he is a right-wing ideologue. He has an agenda that's similar to Clarence Thomas'. I don't think it reflects the agenda of most Hispanics." Last year, Bender told the Washington Post that, "I think [Estrada] lacks the judgment and is too much of an ideologue to be an appeals court judge." So far at least, Bender's comments are the only evidence, if one can use that word, to suggest that Estrada is not a perfectly confirmable choice for the federal bench. But Bender's comments, made after Estrada was nominated last year, are markedly different from ones he made about Estrada when they served together in the Justice Department. Recently, Judiciary Committee chairman Patrick Leahy asked Estrada to give the committee copies of his personnel evaluations from his time at the Department. Estrada agreed, and the documents reveal that Estrada, according to his supervisors:
Estrada's performance was consistently rated outstanding. And the man who wrote and signed those remarkably positive evaluations was none other than...Paul Bender. The records will likely give pause to any committee Democrat who wants to cite Bender's criticism as evidence that Estrada lacks judicial temperament. After all, who wouldn't a judge who is extremely knowledgeable and presents the facts and the law completely and persuasively — all with a concern for fairness? He could not have known it at the time, but Bender might just as well have been writing a recommendation for Estrada to serve on the D.C. Circuit. So look for Democrats to come up with other objections. One leading possibility is that Estrada is not truly Hispanic. Sure, he was born in Honduras of Honduran parents and lived there until he was 17. But the Post reported that Estrada's critics in Hispanic interest groups say "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." Likewise, recall that Bender told the Los Angeles Times that he did not think Estrada's thinking "reflects the agenda of most Hispanics." It's thin gruel — no gruel at all, really — but it's all Democrats have. Still, it is a telling example of the confirmation process as it exists under Patrick Leahy. During his chairmanship, each fight over Bush nominees has been about less than the one before. The Owen fight was about less than the Pickering fight, and now the Estrada fight is about less than the Owen fight. Although he surely would not have wanted it to be so, Estrada's case may go down in history as a battle about nothing at all. |
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epublicans
on the Senate Judiciary Committee are preparing for what promises to be
the strangest judicial-confirmation battle in a season of strange judicial-confirmation
battles. At issue is the president's nomination of Miguel Estrada to a
place on the U.S. Court of Appeals for the District of Columbia Circuit.
At the moment, all indications are the battle will be a searing, take-no-prisoners
fight about...nothing.
"states the operative facts and applicable law completely and persuasively,
with record citations, and in conformance with court and office rules,
and with concern for fairness, clarity, simplicity, and conciseness."
