Senate debate is set to begin today on the nomination of Miguel Estrada to a place on the D.C. Circuit Court of Appeals. It is still not clear whether Democrats will attempt to block a vote on Estrada, who won approval from the Senate Judiciary Committee last week on a straight party-line vote. On Monday, White House Counsel Alberto Gonzales sent a letter to Democratic Sen. Dianne Feinstein in a last attempt to gain her support — if not for the nomination itself, then at least for allowing a full-Senate vote. Although the letter is framed as an effort to correct some of the “inaccurate or incomplete information” that Feinstein has cited in her opposition to Estrada, it is in fact the most concise and effective argument the White House has yet made for the nomination. What follows is the full text of the Gonzales letter.
— B. Y.
February 3, 2003
Dear Senator Feinstein:
I write in response to your vote in the Judiciary Committee on the nomination of Miguel Estrada and to respectfully urge that you reconsider this important nomination when you vote on it in the full Senate. I write in particular because it appears from your statement in the Committee (and on your web site) that you may possess inaccurate or incomplete information on certain issues that you have deemed important to the Estrada nomination.
First, it appears you relied on the fact that Estrada has no previous judicial service. But five of the eight judges currently serving on the D.C. Circuit had no previous judicial experience when appointed. That includes two of President Clinton’s nominees, Merrick Garland, whose Justice Department record was quite similar to that of Miguel Estrada, and David Tatel. In addition, Judge Harry Edwards had no prior judicial experience when he was nominated by President Carter in 1979, and he was younger than Estrada. In addition, several Ninth Circuit judges from California who were appointed by President Clinton, and had your support, had no prior judicial experience. That includes Judge William Fletcher, Judge Raymond Fisher, and Judge Marsha Berzon.
The American Bar Association, which Democrat Senators Leahy and Schumer have referred to as the “gold standard,” unanimously rated Estrada “well qualified” for the D.C. Circuit, the ABA’s highest possible rating. We think the ABA rating was quite appropriate in light of Estrada’s excellent record, including his work as an Assistant Solicitor General in the Clinton and Bush Administrations, his record as a federal prosecutor in New York, his service as a law clerk to Justice Kennedy, and his pro bono work including his volunteer representation of a death row inmate before the Supreme Court. He has argued 15 cases before the Supreme Court of the United States, a figure that few lawyers can match, and particularly impressive for someone who immigrated to this country at age 17 speaking little English.
Second, you also referenced a news report quoting the views of Paul Bender, a former Deputy Solicitor General. Mr. Bender has not written a letter to the Committee or otherwise publicly explained his views, so we are unclear whether this news report was accurate. But more important, as I explained in a September 17, 2002, letter to then-Chairman Leahy and Senator Hatch, Paul Bender in fact signed the performance reviews of Miguel Estrada for the two years that they worked together. The performance reviews for those years gave Estrada the highest possible rating of “outstanding” in every possible category. Significantly, the performance reviews that Bender signed also stated the following to support the judgment that Estrada’s performance was “outstanding.”
“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.”
“[i]s extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to others.”
“[a]ll dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner.”
“[a]ll briefs, motions or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies, or fails to discuss and analyze relevant authorities.”
“[i]s constantly sought for advice and counsel. Inspires co-workers by example.”
Apart from the contemporaneous reviews that Mr. Bender himself signed, it also bears mention that the Committee has received letters from Seth Waxman, President Clinton’s Solicitor General, and a bipartisan group of 14 former colleagues of Mr. Estrada in the Solicitor General’s office. Seth Waxman wrote to the Committee that Estrada is a “model of professionalism and competence” and that he has “great respect both for Mr. Estrada’s intellect and for his integrity.” He continued: “In no way did I ever discern that the recommendations Mr. Estrada made or the views he propounded were colored in any way by his personal views – or indeed that they reflected anything other than the long-term interests of the United States.” And the bipartisan group of former colleagues from the Office of Solicitor General wrote to the Committee that Estrada “would be a fair and honest judge who would decide cases in accordance with applicable legal principles and precedents.” Finally, to the extent Mr. Bender’s own personal political and ideological views are relevant, we call your attention to Senator Hatch’s opening statement at the hearing on September 26, 2002.
Third, you referenced the fact that Miguel Estrada has been “accused” of using an ideological litmus test when assisting Justice Kennedy in the selection of his law clerks. We respectfully do not think this “accusation” is credible or supported. In fact, Mr. Estrada explained at his hearing that he in fact had been very supportive, for example, of the hiring of one law clerk for Justice Kennedy who at the time worked for President Clinton, is a strong Democrat, and now works for Senator Leahy on the Judiciary Committee.
Fourth, you noted concern among “Hispanic organizations.” In fact, the overwhelming majority of national Hispanic organizations have supported Mr. Estrada. That includes the Hispanic National Bar Association, the League of United Latin American Citizens, the U.S. Hispanic Chamber of Commerce, the Hispanic Business Roundtable, and the Latino Coalition, among many others. To be sure, MALDEF and PRLDEF do oppose Mr. Estrada. As to Hispanic members of the House, we understand that all of the Republican Hispanics support him while the Democrat Hispanics do not. In any event, LULAC’s statement is noteworthy, as it states: “[Estrada] is truly one of the rising stars in the Hispanic community and a role model for our youth.”
Thank you for considering this nominee in light of the above information. This is an historic nomination, as Miguel Estrada would be the first Hispanic to serve on the D.C. Circuit. We urge you to vote to confirm him.
Alberto R. Gonzales
Counsel to the President