On Thursday, Miguel Estrada asked President Bush to withdraw his nomination as the first Hispanic on the D.C. Circuit Court of Appeals. Estrada’s nomination had been held up for well over two years. Despite impeccable credentials and a bipartisan majority supporting his confirmation, 45 Democratic senators persisted in a filibuster through seven attempts at cloture. Given his record, why did these Democrats block Estrada’s nomination? Put simply, because he is a Hispanic who broke from the party fold.
Despite their inevitable protesting to the contrary, it is clear that Ted Kennedy’s gang of 45 discriminated against Estrada because he is Hispanic, like they discriminate against another nominee, William Pryor, for his devout Catholicism. Indeed, if Congress were an ordinary employer and a federal judgeship were treated as a job under federal antidiscrimination law, then Estrada would likely win on a claim of employment discrimination.
First, the Democrats treated Estrada differently than non-minority nominees. In the D.C. Circuit, for example, John Roberts, a white applicant, was confirmed without fanfare, while Estrada was filibustered. But aside from ethnicity, there are few substantive differences between the candidates: Both were voted unanimously well-qualified by the American Bar Association; both went to prestigious law schools; both clerked for the Supreme Court; both worked at the Justice Department; and both went on to prestigious law firms where they argued numerous cases before the Supreme Court. And yet John Roberts was asked relatively few questions during his confirmation hearing, while Estrada was pummeled with over 200. Roberts, nominated the same day as Estrada, was confirmed by the Senate on a voice vote, while Estrada was denied the opportunity to even have a vote.
Of course, this is not the first time that a member of a protected class has been treated differently than a white male. Take Justice Priscilla Owen, for example. She was nominated to the United States Court of Appeals for the Fifth Circuit the same day that Michael McConnell was nominated to the Tenth Circuit. Both have distinguished careers making them well-qualified for the bench — McConnell as a law professor, and Owen as a Texas supreme-court justice. Owen has been filibustered because she issued a series of opinions interpreting a Texas law that requires a minor in most cases to notify her parents if she is seeking an abortion less narrowly than the Democrats in Congress would prefer. Indeed, her offense was little more than applying established U.S. Supreme Court precedent to the question. Furthermore, she affirmed to the Judiciary Committee that she would apply Roe as the law of the land. By contrast, Judge McConnell wrote an article in the Wall Street Journal in which he described Roe as “an embarrassment to those who take constitutional law seriously . . . .” He offered the same sort of reassurances to the senators that he would apply the law. He is now a federal judge, and she is still being filibustered.
Second, Estrada has been subjected to what can only be described as ethnic slurs by groups who have worked in concert (or to use the legal term, entered into a conspiracy) with Ted Kennedy’s 45 to keep Estrada off the bench. For example, they have claimed that he is not really Hispanic, and claim that being Hispanic requires more than a surname. I’m sure that those statements would sit very well with a jury in a case in which the party was denied a job that was handed over to a similarly situated white male.
Third, the justifications offered by Teddy’s 45 for the borking of Estrada are pretextual, and would not stand up in court. First, they alleged that he failed to answer their questions. But Estrada answered all the questions that he felt would not violate the canons of judicial ethics. He then offered to answer any questions the senators had in follow-up, but very few even bothered to submit questions. Then, they said that they needed internal DOJ documents in order to make a decision. Leaving aside the fact that this is an egregious breach of separation of powers, the senators did not ask for such files from white candidate Roberts. Finally, Sen. Charles Schumer suggested yesterday that Estrada was outside the mainstream. But there is not one single sliver of evidence to suggest that this is true. The only evidence that the Democrats could muster to suggest that Estrada is ideological was a statement by former DOJ political appointee Paul Bender — a man whose statements were so quickly and thoroughly discredited by Clinton Solicitor General Seth Waxman that Bender ceased spreading his spurious opinion.
Democrats will inevitably respond that they opposed Estrada because they believed that he was conservative. But they had less reason to believe he was conservative than Roberts. This demonstrates what is at the heart of the issue: They opposed him more vehemently because he was perceived to be a conservative Hispanic, and as such is thought to be a viable Supreme Court nominee. As much as they may say that they just love Hispanics (some of their very best friends are Hispanic!), they can’t avoid the fact that it is because he is conservative and Hispanic that they oppose him — even if they are using Hispanic heritage as a proxy for upward mobility. Because mixed-motive discrimination is still discrimination — Sen. Kennedy should know, he pushed for expanding the bases for mixed-motive discrimination claims in the Civil Rights Act of 1991 — the Democrats can’t hide behind the “permissible” factor of opposing conservatives to excuse the fact that they treat candidates differently based on whether they believe that their race, ethnicity, or gender will make them viable candidates for higher office.
Unfortunately, Estrada is the first to fall prey to Ted Kennedy’s obstruction, but he inevitably won’t be the last. Who will be the next victim of the Democrats’ racism? Most likely California supreme — court justice Janice Rogers Brown. While the Democrats in the Senate are likely to say that they only oppose her because she is conservative, their actions will prove otherwise. Listen for comparisons of her to Clarence Thomas, and note that she will be treated much differently than was her White fellow nominee John Roberts. That Teddy’s 45 should treat Republican minorities differently is disappointing but not shocking. After all, nothing upsets Sen. Kennedy and his pals more than when those they view as intellectual slaves dares to leave the Democratic plantation.
— Robert Alt is a fellow in constitutional studies and jurisprudence at the John M. Ashbrook Center for Public Affairs at Ashland University.