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It's Time For The Senate To Confirm Miguel Estrada Don't Let Miguel Estrada On The Bench Hispanic Caucus Opposes Nomination
No More Stalling: It's Time For The Senate To Confirm Miguel Estrada.
By Alberto R. Gonzales
September 26, 2002
After 16 months of delay, the Senate Judiciary Committee will hold a hearing today on Miguel Estrada, one of President Bush's nominees to the U.S. Court of Appeals for the D.C. Circuit. Estrada is superbly qualified for the job and would be the first Hispanic to serve on that court, which some consider to be the second-most-important federal court in America after the Supreme Court.
His extraordinary intellect, experience, integrity and support normally would mean a swift Senate confirmation -- particularly given the historic nature of the nomination. But some Senate Democrats have deemed Estrada controversial and are apparently threatening to block his confirmation. Sen. Charles E. Schumer (D-N.Y.) stated last April: "From my perusal of the record, [Estrada] is way out of the mainstream."
I do not know what record Schumer could have been referring to. Estrada has not been the author of controversial opinions or articles, nor has he spoken out on divisive issues. He is not a politician or an interest-group leader who has sought to make policy. What he has done is serve, in a variety of public and private capacities, as a brilliant and careful lawyer devoted to the courts and the law.
But in the current political atmosphere, some nominees are not being assessed by the traditional standards of quality and ability to follow the law as a judge, but rather are being delayed or outright blocked because of distorted analyses of their perceived policy or personal views. As the president, the chief justice and the American Bar Association have stated, every judicial nominee deserves a prompt hearing and fair vote -- no matter who is president or which party controls the Senate. In the words of the ABA, "Vote them up or down, but don't hang them out to dry." It is past time for the Senate to act on a bipartisan basis to institute a fair and timely judicial confirmation process that will endure well into the future.
The problems in the judicial confirmation process have gone beyond mere delay, however. Even after hearings, for example, the Senate Judiciary Committee has refused to allow full Senate votes on well-qualified nominees -- despite the fact that the president's nominees would be confirmed if they received a full Senate vote. Single-issue Washington interest groups have played an unfortunate role in the process, moreover, by distorting records, leveling unfair charges and ignoring bipartisan support for the president's nominees.
That Estrada could be seen as controversial is an example of this regrettable trend. By any reasonable standard, he is an American success story. He came to this country as a teenager from Honduras speaking little English. He attended Columbia College and Harvard Law School, graduating with honors from both. He clerked for Justice Anthony M. Kennedy on the Supreme Court, served as an assistant U.S. attorney in the Southern District of New York and has worked at leading law firms in New York and Washington. He spent five years -- four during the Clinton administration -- in the U.S. solicitor general's office, which represents the United States before the Supreme Court. Estrada has argued 15 cases before the high court and is well known for his written and oral advocacy.
While in private practice, he devoted hundreds of hours -- for free -- to the representation of a death row inmate before the Supreme Court. Estrada's co-counsel in that case has written to the Senate that "[o]ne would not expect the defense of a death row inmate to become the legal mission of a strong political conservative." Estrada's decision to involve himself in that case demonstrates his devotion to the rule of law.
Estrada also has tremendous bipartisan support. He received a unanimous "well qualified" rating -- the highest possible -- from the ABA, which Schumer and Democratic Sen. Patrick J. Leahy (Vt.) have referred to as the "gold standard" for evaluating judicial nominees. A number of prominent Hispanic organizations have supported Estrada and urged the Senate to treat him fairly. He is supported by leading Democratic lawyers, including Ron Klain, who served as chief of staff to Vice President Al Gore, and by high-level officials of the Clinton Justice Department.
Former colleagues in the solicitor general's office also have publicly praised Estrada. Seth Waxman, solicitor general under President Clinton, has written to the Senate that he has "great respect both for Mr. Estrada's intellect and for his integrity" and that he is "a model of professionalism and competence." A bipartisan group of 14 former colleagues who served with Estrada in that office wrote to the Senate that Estrada "would be a fair and honest judge who would decide cases in accordance with applicable legal principles and precedents."
Few lawyers in the United States have the combination of intellect and experience that Miguel Estrada will bring to the D.C. Circuit. A mainstream nominee who has exhibited throughout his career the integrity and temperament to be a superb appeals court judge, a Hispanic immigrant who has risen to the peak of the legal profession, Miguel Estrada is an inspiration to Hispanics and to all Americans. The Senate should confirm him promptly.
The writer is counsel to the president.
Don't Let Miguel Estrada On The Bench
Juan A. Figueroa
September 27, 2002
President George W. Bush's nomination of Washington lawyer Miguel A. Estrada to the U.S. Court of Appeals for the District of Columbia Circuit is not about diversifying the federal bench. It is about courting the Latino vote and moving a conservative agenda.
Although the White House and others are touting Estrada as the first Hispanic ever nominated to the second most powerful court in the nation, the label does not fit. And if the label does not fit, the Senate Judiciary Committee should not commit. A more appropriate description of him is ``young, inexperienced and very conservative.''
The Hispanic vote has been highly coveted since the 2000 Census showed that Latinos are the fastest growing minority in the nation, now numbering more than 35 million. The inclusion of more Latinos in highly visible, influential judicial posts is critical, especially because there are so few Hispanics on the bench.
Miguel A. Estrada is a partner at Gibson, Dunn & Crutcher, the law firm that represented George W. Bush the candidate before the U.S. Supreme Court in the Florida recount imbroglio. Theodore Olson, a partner at Gibson, Dunn & Crutcher, argued Bush vs. Gore before the high court. Subsequently, President Bush named Olson solicitor general. Estrada assisted Olson in the Florida case. Olson is Estrada's patron.
These facts may help explain why someone who has not served as a judge or taught at a law school gets tapped to serve (for life) on such an influential court at only 39 years old. It may also help explain why he is being mentioned as a potential Supreme Court justice by his backers. Most important, as members of the Federalist Society, Olson and Estrada share similar conservative ideological perspectives.
Founded in 1982 by Olson and others, the Federalist Society is widely viewed today as providing the leading role in setting judicial and legal policy for the current administration. The society says it doesn't take stands, but prominent members have argued against affirmative action, landmark civil rights rulings and other decisions that affect basic liberties.
Estrada is being touted as a smart, disadvantaged Central American Hispanic immigrant who overcame many barriers (including language) to eventually obtain an Ivy League education.
Te conozco bacalao ... aunque vengas disfrasao' (``I know who you really are ... even though you come disguised'') is a common refrain I heard growing up in Ciales, Puerto Rico. It is descriptive of what is happening with this nomination.
Estrada comes from a well-established family in Honduras. His father was also a lawyer. Estrada studied in private schools. He was taught English as a second language. He was well educated by his family after graduating from high school. It is not at all surprising that in a year's time after arriving in New York, Estrada had charted a course through two of the most exclusive and expensive educational institutions in the world -- Columbia University and Harvard Law School.
This experience is certainly not that of the hundreds of thousands of Central American immigrants who have come to this country to escape poverty, political repression or natural catastrophe. There is nothing wrong with Estrada's upbringing. His supporters, however, should stop claiming he is a modern-day Horatio Alger, as the Christian fundamentalist group Concerned Women of America has claimed.
One does not have to be poor and disadvantaged to understand and connect with the plight of those who are. But Estrada most certainly has not. For the Center for Community Interest, for example, he has championed anti-loitering laws that are at best controversial in communities of color. His other affiliations include the Old Town Civic Association and the Old Town Walled Garden Club in Alexandria, Va., and the Smithsonian Associates. These are hardly the associations that make him knowledgeable of or sensitive to Latinos' experiences, particularly those Latinos who have experienced discrimination or struggled with poverty, indifference or unfairness. Diversifying the bench is arguably about adding those perspectives to our courts of law.
A number of well-respected national Latino groups -- including the Congressional Hispanic Caucus -- are rightly opposing Estrada's nomination or expressing strong reservations. The higher the court, the more emphasis there should be on judicial nominees who unify the Hispanic American community --and not in opposition, as Estrada does.
Estrada is Latino in name, but not necessarily in experience or perspective. In nominating him, President Bush is catering to his right-wing flank, not to Hispanics. The correct label for Estrada is there for all to see: a Federalist Society conservative. Te conozco bacalao ... aunque vengas disfrasao'.
Juan A. Figueroa is president and general counsel of the Puerto Rican Legal Defense and Education Fund in New York City. He served as a Democratic state representative from Hartford from 1988 to 1993. His column appears the fourth Friday of every month. To leave him a comment, please e-mail him at email@example.com.
Congressional Hispanic Caucus Opposes Bush Nominee For Appeals Court
BY JAN CRAWFORD GREENBURG
September 25, 2002
WASHINGTON - (KRT) - With the composition of one of the nation's most influential courts in the balance, Republicans and Democrats drew sharp battle lines this week over President Bush's nomination of a conservative Hispanic lawyer to a court often seen as a stepping stone to the Supreme Court.
If confirmed for the U.S. Court of Appeals for the D.C. Circuit, Miguel Estrada, a Honduran native who moved to the United States as a teenager, would become one of the highest-ranking Hispanic jurists in the country and a leading contender for a Supreme Court nomination.
But Democrats and liberal public interest groups - as well as some Hispanic organizations - are lining up to oppose Estrada because of his conservative views. Some have even begun calling him the "Hispanic Clarence Thomas," a reference to the Supreme Court justice whose conservative opinions have been at odds with those of many African Americans.
In a pointed news release Wednesday - the day before the Senate Judiciary Committee meets to consider Estrada's nomination - the Congressional Hispanic Caucus announced it would oppose him. The caucus said Estrada had failed to recognize or respond to the needs of the Hispanic community.
"The appointment of a Latino to reflect diversity is rendered meaningless unless the nominee can demonstrate an understanding of the historical role courts have played in the lives of minorities in extending equal protection under the law," said Rep. Charlie Gonzalez, D-Texas, the caucus' civil rights task force chairman.
But Republicans are digging in their heels on the nomination, setting the stage for what could well be the most contentious battle yet over a Bush judicial nominee. They emphasize Estrada's impressive intellectual firepower and his hard-work success story that led him from Honduras to the Ivy League, then on to a Supreme Court clerkship and top government and law firm jobs.
The stakes, legal and political, are extremely high. Confirming Estrada to the Washington appeals court would give Republican appointees an edge on one of the nation's leading - and, many argue, most significant - appellate courts. The D.C. Circuit, now split with four Democratic and four Republican appointees, rules on many key federal statutes and agency decisions, and it often has the last word.
What's more, both sides acknowledge that Estrada, if confirmed to the appeals court, would be high on the list of possible Supreme Court nominees if a vacancy occurs during Bush's presidency. It's no secret that Bush would like to nominate the first Hispanic to the nation's high court.
Opposing Estrada's nomination could present tough political problems for Democrats, who are battling Republicans for Hispanic electoral support.
Thursday's hearing comes as Judiciary Committee members have grown increasingly divided over Bush's nominations. Senate Democrats have defeated two of the president's nominees in the last six months on the grounds they were too conservative and have warned that others could meet a similar fate.
Just last week, Democrats sharply questioned former University of Chicago law professor Michael McConnell, spending most of his confirmation hearing focusing on whether he would impose his conservative views on the courts.
McConnell, a prolific writer and leading religious scholar, has openly criticized the Supreme Court's landmark 1973 decision that guaranteed a woman's right to an abortion, but has maintained he would be an open-minded judge if confirmed to a seat on a Denver-based federal appeals court.
Estrada, however, is an entirely different nominee from McConnell. While his intellectual capabilities are unquestioned - he was editor of the Harvard Law Review and is highly regarded in legal circles - there's little in the way of public writings that could shed light on the kind of judge he would be, Democrats say.
"Miguel Estrada is an enigma," said Nan Aron, president of the liberal public interest group Alliance for Justice. "There's a dearth of information about him and his record."
To remedy that, Democrats are seeking memos he wrote during the five years he worked in the U.S. Solicitor General's Office, representing the government in jury trials and appeals. The White House - backed by every living solicitor general, Republican and Democrat - maintains those memos are privileged and should not be made available to the committee.
Republicans say Estrada's impressive academic credentials, highly favorable performance evaluations and glowing reviews from colleagues give committee members more than enough information to assess him, and they accuse Democrats of distorting the process.
Republicans have castigated Senate Democrats for too closely focusing on ideology, as opposed to a candidate's qualifications, in evaluating nominees. At an unusual news conference Tuesday on the steps of the Supreme Court, Attorney General John Ashcroft praised Estrada and noted he had a broad range of supporters, including Democrats such as Seth Waxman, who served as solicitor general in the Clinton administration.
But Democrats say Estrada himself has made ideology an issue in the past, adding that they expect to question him Thursday about his role in screening prospective law clerks for Supreme Court Justice Anthony Kennedy. Two people who sought Kennedy clerkships have raised questions about whether Estrada used a litmus test in making his recommendations.
Several former Kennedy clerks - including Estrada, federal appeals court Judge Alex Kozinski and former Justice Department official Richard Willard - have served on a screening committee that interviews prospective clerks and recommends to Kennedy whether they should get a closer look.
One of those Estrada interviewed, a former Justice Department lawyer who now is a law professor, said he believed Estrada had either used "an ideological litmus test, which I failed," or was "an unpleasant person or both."
Estrada's questions, on the death penalty and other controversial topics, the law professor said, seemed designed solely to assess his ideological leanings. The professor spoke on condition of anonymity.
Another person recalled asking Estrada for help in seeking a Kennedy clerkship.
"He kind of laughed and said, `No way, you're way too liberal,' " said the man, who now works at a Washington law firm and also declined to be identified. "He went on to explain that the point of the screening committee was to make sure there were no new liberal clerks hired."
But others who went through Kennedy's clerkship process, including some interviewed by Estrada, said he did not use an ideological litmus test in making his recommendations. They noted that he has recommended some relatively liberal clerks.
Interviews for Supreme Court clerkships, they said, are notoriously tough, regardless of who does the interviews, because applicants must be able to deftly analyze a variety of legal arguments.