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In Support Of Dora Irizarry Embattled Estrada Withdraws As Nominee For Federal Bench, Activists Claim Victory
In Support Of Dora Irizarry
New York Law Journal
August 12, 2003
Judge Dora I. Irizarry is up for a federal judgeship. As one who has had the honor to repeatedly participate in the Association of the Bar of the City of New York Judiciary Committee's screening process, being one of New York County Lawyers' Associations' designee in the early nineties, and serving until June 2003 as vice chair of the Kings County Democratic party's Independent Judicial Screening panel, it would have been easy for me to vote her "up" and find her "qualified." Indeed, Judge Irizarry has been recommended by Governor George Pataki after being found qualified, this time by the governor's federal judicial screening panel. The nomination is well deserved and should be approved by the U.S. Senate. Yet, the American Bar Association and the City Bar have suddenly found her unqualified.
Judge Irizarry is an exceptional American with amazing achievements: Born in San Sabastian, Puerto Rico; a single parent raising a teenage son; graduated from Yale and Columbia Law; served the public for 16 years as a prosecutor, and then, since 1995, as a New York City Criminal Court judge, and since 1997, a Court of Claims judge, the first Latina on that bench. Academically, she is Ivy league, personally, she has enough "true grit" to make John Wayne proud.
To become a judge, she was found qualified twice by two political panels: the mayor's judicial screening panel, and the governor's judicial screening panel.
Then in 2002 she had the temerity to agree to leave the bench and run as a Republican candidate for attorney general against a most popular incumbent, Eliot Spitzer. Her loss, while expected, did not diminish her achievement: a first-ever Hispanic to carry the banner of a major political party for statewide office. In fact, her comprehension from running statewide only educated her to the values of all New Yorkers, upstate and downstate. That the governor rewarded her with his recommendation is only the latest proof that politics is what makes all of the people, even minorities, live the American dream.
Bar association vetting is important, as it brings transparency and promotes public confidence in appointive and elective judiciary. The mere fact that Judge Irizarry ran and lost, and is now being nominated to the federal bench, wherein she will again, for a third time, achieve a first-ever status: become the first Hispanic judge on the Eastern District bench.
The ABA has a proud record of serving the republic with pre-nomination vetting. Poor post-nomination vetting could become a basis for deteriorating protocol; a risk we can't afford. The inability of the City Bar to find Judge Irizarry qualified is troubling, particularly, as it is ignoring its own two prior findings of qualified. To remain relevant, the ABA and the City Bar ought to sua sponte reconsider and approve this judge on the merits with all deliberate speed. Even Senator Charles Schumer, a force in moderating federal judicial nominations, supports her nomination.
Embattled Estrada Withdraws As Nominee For Federal Bench
By CARL HULSE and DAVID STOUT
September 5, 2003
WASHINGTON, Sept. 4 Miguel Estrada, President Bush's embattled nominee for an important federal appellate court, gave up his two-year struggle for confirmation today and asked Mr. Bush to withdraw his name from consideration. His decision ignited a smoldering political dispute on Capitol Hill over nominations for federal judgeships.
"I write to ask you to withdraw my pending nomination," Mr. Estrada said in a letter to the president. "I believe that the time has come to return my full attention to the practice of law and to regain the ability to make long-term plans for my family."
Mr. Estrada thanked Mr. Bush for his personal support and even held open the prospect of accepting a nomination at another time, saying, "I profoundly hope that at some time in the future, I may be called again to serve my country in some capacity."
President Bush issued a statement calling Mr. Estrada's treatment during the confirmation process "disgraceful."
Copies of Mr. Estrada's letter immediately began circulating on Capitol Hill, touching off heated accusations between Republicans and Democrats about each party's motives and visions for the country.
Senator Bill Frist of Tennessee, the leader of the Senate's Republican majority, called Mr. Estrada's abortive nomination for a seat on the Court of Appeals for the District of Columbia Circuit "a sorry chapter" for the Senate.
"Today is a shameful moment in the history of this great institution," Dr. Frist said. "The United States Senate denied the right to confirm or reject a brilliant and well-qualified nominee because of the obstruction of the few."
The House majority leader, Tom DeLay, Republican of Texas, said Mr. Estrada was the victim of a "political hate crime."
But Democrats on the Senate Judiciary Committee hailed the withdrawal as a victory for the Constitution, saying it confirmed the intent of the Founders that the judiciary should be independent.
"This should serve as a wake-up call to the White House that it cannot simply expect the Senate to rubber-stamp judicial nominations," Senator Edward M. Kennedy of Massachusetts said.
The outcome was certain to color relations in the Senate, with Dr. Frist and other Republicans incensed at the Democratic minority and particularly their leader, Tom Daschle of South Dakota, for orchestrating the fight against Mr. Estrada.
The end of Mr. Estrada's struggle was also likely to cloud relations between the White House and Democrats on Capitol Hill, as the statement by Mr. Bush signaled.
"Mr. Estrada received disgraceful treatment at the hands of 45 United States senators during the more than two years his nomination was pending," President Bush said. His statement was distributed to reporters aboard Air Force One as Mr. Bush was flying to Kansas City, Mo., to speak on the economy.
"Despite his superb qualifications and the wide bipartisan support for his nomination," Mr. Bush said, "these Democrat senators repeatedly blocked an up or down vote that would have led to Mr. Estrada's confirmation. The treatment of this fine man is an unfortunate chapter in the Senate's history."
In recent years, nominations to federal judgeships have become far more contentious, in part because of battles in the courts over highly charged issues like abortion rights.
With 51 votes, the Republicans hold a razor-thin majority in the Senate. Moreover, Mr. Estrada drew the support of several Democrats, giving him 55 votes at one point. But unfortunately for him, 60 votes are necessary to break a Senate filibuster, a stalling tactic the Democrats used to thwart the nomination.
Senate Democrats are also filibustering two other Bush judicial nominees: Priscilla Owen of the Texas Supreme Court and Attorney General William Pryor of Alabama. But Senator Daschle, the minority leader, has pointed out that despite the controversy over these and some other Bush nominations, the Senate has confirmed dozens of judicial nominees with little or no debate.
A Honduran immigrant and a graduate of Harvard Law School, Mr. Estrada was nominated more than two years ago to a seat on the appellate court, widely regarded as second in importance to the United States Supreme Court and a frequent source of Supreme Court nominees. (Three of the nine current Supreme Court justices served on the District of Columbia Court of Appeals.)
The Republican Party had hoped to make Mr. Estrada the first Hispanic judge on that bench and regarded him as a strong candidate to become the first Hispanic Supreme Court justice.
But Democratic opponents said Mr. Estrada, who is a lawyer in Washington, was part of President Bush's plan to tilt the courts far to the right. Critics said he was too inexperienced to be a judge, that he had put too few of his views in the public record, and that his philosophy remained largely a mystery, particularly on such contentious issues as abortion and civil liberties.
Critics portrayed his performance at confirmation hearings last fall at which he appeared unusually reticent for a nominee as stonewalling, citing his assertions that he could not discuss some well-known cases because he had not read the briefs or heard the oral arguments.
Supporters said Mr. Estrada was an excellent candidate who was opposed by Democrats because they wanted to deal a blow to President Bush. Senator Orrin G. Hatch, the Utah Republican who is chairman of the Senate Judiciary Committee, noted that Mr. Estrada had argued 15 cases before the Supreme Court and that his nomination had received the highest rating from the American Bar Association.
In July, Senate Democrats successfully filibustered an attempt by Republicans to push through the nomination. Supporters were unable to get the necessary 60 votes to end the Democratic filibuster and get his nomination to the Senate floor for a vote.
Opponents and supporters alike had regarded Mr. Estrada's nomination as a stroke of political astuteness. Administration officials had hoped it would forestall protests by liberal Hispanics who opposed his conservative stances but were eager to see a Hispanic lawyer on the court.
But officials of at least two prominent Hispanic legal organizations the Mexican American Legal Defense Fund and the Puerto Rican Legal Defense and Education Fund expressed reservations at the nomination. Though the Hispanic Bar Association endorsed the Estrada nomination last year, several former presidents of the group criticized that action.
Senator George Allen of Virginia, head of the Republican Senate campaign committee, said today: "The personal foul is on Tom Daschle. He is the one who engineered this from the very beginning."
He added, "Tom Daschle and Democratic leaders wanted to take him down now so the president could not have the first Hispanic appointment to the Supreme Court."
Mr. Daschle dismissed the criticism, saying Mr. Estrada would have been confirmed had the White House been more forthcoming in response to Democratic requests for papers concerning Mr. Estrada's views on an array of issues. "There is no other reason for his failure to be confirmed," he said.
Senator Charles E. Schumer, Democrat of New York, said Mr. Estrada's withdrawal reflected "a sad day for Miguel Estrada and the judicial confirmation process."
"Had Mr. Estrada answered questions and had the administration provided documents, we would have had a real debate about whether Mr. Estrada is qualified for a lifetime appointment to the nation's second most powerful court," Senator Schumer said.
"Unfortunately, this White House thumbed its nose at the constitutionally-prescribed role of the Senate in the nominations process when it admonished Miguel Estrada not to answer the fair, reasonable and relevant questions we put to him.
"This issue transcends any one person and goes to the core of the Constitution itself. For the advise and consent process to work, nominees have to be forthright and answer questions when they come before the Senate."
The president of People for the American Way, Ralph G. Neas, said that Mr. Estrada had been blocked "by a courageous Democratic filibuster based on his troubling right-wing record and his refusal and the refusal of the Bush administration to answer many legitimate questions about his record and judicial philosophy."
But the Heritage Foundation had an opposite reaction. "It's a sad day for American jurisprudence," said Todd Gaziano, director of the foundation's Center for Legal and Judicial Studies. "Mr. Estrada is an outstanding individual and would have made an excellent appeals court judge."
This article was supplemented with reporting by Kirk Semple.
Activists Claim Victory With Estrada Withdrawal
Jim Lobe, OneWorld US
September 5, 2003
Washington, Aug 5 (OneWorld) -- Prominent civil-rights groups claimed victory here Thursday after attorney Miguel Estrada, nominated by President George W. Bush to a key judgeship two years ago, announced he was withdrawing his name from consideration.
In his withdrawal statement, Estrada, the target of repeated filibusters by Senate Democrats who charged him with trying to hide his right-wing political and ideological views during confirmation hearings, said "the time has come to return my full attention to the practice of law and regain the ability to make long-term plans for my family."
Bush and Republican lawmakers reacted to the announcement angrily. Bush said the Democrats' efforts to prevent a vote on his nomination were "disgraceful."
"Despite his superb qualifications and the wide bipartisan support his nomination," Bush said in a written statement, "these Democratic senators repeatedly block an up-or-down vote that would have led to Mr. Estrada's confirmation. The treatment of this fine man is an unfortunate chapter in the Senate's history."
But the head of the Leadership Conference on Civil Rights (LCCR), Wade Henderson, applauded the Democrats' unexpectedly strong resistance to the nomination. "It is unacceptable to force the U.S. Senate and the American people to approve stealth judicial candidates and those who subscribe to a 'state rights' philosophy' that curtails Congress' power to enact critical civil-rights legislation," he said.
The director of People for the American Way (PFAW), Ralph Neas, echoed Henderson. He charged that Estrada, the first Latino to be nominated to serve on the influential Court of Appeals for the District of Columbia, had refused "to answer many legitimate questions about his record and judicial philosophy."
Civil-rights groups and Democrats had charged that Estrada was a "far-right stealth nominee" who had deliberately avoided making public statements or publishing his views in order to make himself less controversial. His professional associations and work in the Justice Department under Attorney-General John Ashcroft, according to his critics, suggested strong ideological views, suspicions compounded by the Department's refusal to provide access to his work records.
Estrada similarly refused to answer many questions about his views during his confirmation hearings. Asked, for example, whether he disagreed with any of the Supreme Court's decisions over the last 40 years, the Honduran native and Harvard Law School graduate, said he was not in a position to give such an opinion. He repeatedly refused to be drawn out on his positions on civil-liberties issues.
Nor did his reputation for arrogance, sometimes bordering on rudeness, help his cause. In courtesy calls to some civil-rights groups, Estrada was reported to be disdainful, in one case calling the questions put to him by the president of a respected Puerto Rican group "boneheaded."
Such behavior fueled opposition to his nomination from Democrats, 45 of whom vowed to filibuster his nomination when it came to the floor. The nomination was also opposed by several major national Latino rights groups.
Supported by all Senate Republicans, Estrada's confirmation would have been assured on an up-and-down vote that would have required a simple majority of votes. To end a filibuster, however, at least 60 votes are required, and Republicans repeatedly fell short of that bar. In the last vote to close the debate in July, Republicans found they could muster only 55 votes.
"For a lifetime appointment of such a controversial nominee to such a key court, 60 votes is a reasonable threshold--and we urge senators to hold every questionable nominee to this standard," said Kim Gandy, president of the National Organization for Women (NOW), which also opposed the nomination.
She described Estrada's withdrawal as a "huge" victory. "Two years ago, it was hard to find anyone in Washington who would touch the f-word--filibuster. But as the Bush administration continues its relentless campaign to hijack the federal courts with right-wing nominees, the tide has started to turn," Gandy said.
Democrats have filibustered or threatened to filibuster a number of other judicial nominees with what they consider to be far-right philosophies and have charged that Bush and Ashcroft are trying to pack the federal bench with like-minded jurists. In addition to Estrada, Texas judge Priscilla Owen, Mississippi Judge Charles Pickering, California judge Carolyn Kuhl, and Alabama Attorney-General Richard Pryor--all nominated to appeals courts--have been the most prominent.
The filibusters have been assailed by Republicans and the administration as divisive and undemocratic insofar as they prevent floor votes on the nominees. But Democrats point out that more than twice as many of Bush's judicial nominees have been confirmed than those nominated by former President Bill Clinton at a comparable point in the two presidents' terms.
PFAW said Thursday that the administration's most recent nominees to the District of Columbia appeals court--Brett Kavanaugh and Janice Rogers Brown--may also provoke filibusters. "Estrada's withdrawal will shift the focus to these and other Bush nominees who have extremely troubling records of ideological extremism and right-wing judicial activism," said Neas.
"These nominees reflect the Bush administration's intention to pack the federal appeals courts with judges who would turn back the clock on civil rights, privacy and reproductive rights, environmental protection, religious liberty and much more," he said.
"This should serve as a wake-up call to the White House that it cannot simply expect the Senate to rubber-stamp judicial nominations," added Sen. Edward Kennedy, who helped lead the filibuster.