Senate Democrats Target Miguel Estrada

Opposition to superbly qualified candidate is especially intense because he is Hispanic

In any history of the judicial-confirmation wars, the battle over George W. Bush’s nomination of appellate lawyer Miguel Estrada to a D.C. Circuit seat in 2001 deserves its own chapter. Senate Democrats opposed the superbly qualified nominee especially fiercely because he was Hispanic: they wanted to prevent him from becoming the first Hispanic on the Supreme Court, and they feared that service on the D.C. Circuit would put him on a glide path to that destination.

After Democrats lost control of the Senate in 2003, they dramatically escalated the battle against Estrada by resorting to a weapon that had never before been used against an appellate nominee: the filibuster. In various ways that they didn’t foresee, their precipitous intensification of the confirmation wars helped pave the way to the Supreme Court that we have today.

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Miguel Estrada had stellar credentials for the D.C. Circuit when George W. Bush made him part of his first slate of eleven appellate nominees in May 2001. A partner in the appellate practice at a leading D.C. law firm, Estrada had worked for five years—nearly all of it in the Clinton administration—as a line lawyer in the Department of Justice’s Office of the Solicitor General (OSG), where he briefed and argued cases on behalf of the United States in the Supreme Court. He had also worked for two years as a federal prosecutor in the vaunted U.S. Attorney’s Office for the Southern District of New York. On top of his sterling academic achievements—graduate with high honors from Columbia University and Harvard Law School—Estrada had distinguished clerkships with Second Circuit judge (and Carter appointee) Amalya Kearse and Supreme Court justice Anthony Kennedy.

Miguel Estrada at White House ceremony in May 2001

Over the course of his career, Estrada had earned a reputation for dazzling brilliance. Paul Engelmayer, a Democratic colleague in the Solicitor General’s office (later appointed to the federal bench by Barack Obama) recounted that what distinguished Estrada’s memos is that they “were more thorough and better” than the usual excellent work of the office, “sometimes jaw-droppingly comprehensive and impressive.” Estrada was also famous for a “near-photographic memory”:

His colleagues could ask a question on a technical point, and he’d reply something like, “If you look in 820 federal second on Page 630 on the left-hand side of the page, you will see the 8th Circuit has spoken to just that point.”

“The scary thing was he was almost always right,” Engelmayer says.

Thus, although he was only 39 when Bush nominated him, it was no surprise that the American Bar Association’s judicial-evaluations committee unanimously gave him its highest rating of Well Qualified.

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I have known Miguel Estrada for forty years. He was a year behind me in law school and on the staff of the Harvard Law Review (as was his dear friend Elena Kagan), and we have been friends since we both moved to D.C. in the early 1990s and joined the ranks of its then-small conservative legal community.

I was very much hoping to draw on Estrada’s own recollections for Confirmation Tales. But for reasons that I understand and respect, he prefers not to revisit the matter of his nomination. I have therefore had no recent exchanges with him about his nomination, nor have I run any drafts or passages by him. Insofar as my post states or implies any facts or opinions, I have not drawn them from him.

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When Estrada was first nominated in May 2001, it was very easy to imagine that he would be confirmed before the end of the summer. Republicans had 50 seats in the Senate plus Vice President Dick Cheney’s tie-breaking vote. Although the Judiciary Committee had an equal number of Republicans and Democrats, a tie vote in committee would not prevent a nomination from being reported to the Senate floor, as the majority leader could move to discharge the nomination from committee.

But Estrada’s hopes for a quick confirmation were dashed a mere 15 days later, when Senator Jim Jeffords of Vermont announced that he was leaving the Republican Party to become an independent and that he would caucus with the Democrats. Democrats would now have the majority, and they could obstruct Estrada’s nomination by simple inaction.

As an aide to Democratic senator Dick Durbin put it in a memo to Durbin, liberal interest groups

identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.

(There was a big brouhaha over how a Republican staffer obtained access to this and other memos, but no one contests its authenticity.) Key Democratic senators clearly shared these concerns.

Bereft of any legitimate grounds on which to contest Estrada’s nomination, Democrats resorted to a tawdry two-part attack. First, they amplified the assertion by a left-wing ideologue, law professor Paul Bender, who had been a political appointee in the Office of the Solicitor General, that Estrada was “too much of an ideologue to be an appellate judge.” Second, they demanded that the Bush administration provide the Senate all of Estrada’s OSG memos, on the ground that those memos would “be useful in assessing how [Estrada] approach[es] the law.”

Let’s take these in turn.

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Paul Bender stood starkly alone in his negative assessment of Estrada’s judicial temperament. In a letter to the Judiciary Committee, Seth Waxman, who succeeded Bender as OSG principal deputy, referred to Bender’s criticisms and bluntly stated that he did “not share those criticisms at all”:

During the time Mr. Estrada and I worked together, he was a model of professionalism and competence. In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views—or indeed that they reflected any consideration other than the long-term interests of the United States.

In their own letter, line attorneys who served with Estrada in OSG and who had “varying ideological views and affiliations that range across the political spectrum” attested that his

conduct is characterized by the utmost integrity and scrupulous fairness…. [W]e are unanimous in our conviction that Miguel would be a fair and honest judge who would decide cases in accordance with the applicable legal principles and precedents, not on the basis of personal preferences or political viewpoints.

Someone else who contradicted Paul Bender was … Paul Bender. In his performance evaluations of Estrada, Bender gave him the highest possible rating of “outstanding” in every job-performance category.

I could go on and on.

Judiciary Committee chairman Patrick Leahy and vocal Estrada critic Chuck Schumer hailed the ABA judicial rating as the “gold standard” when they objected to Bush’s decision to kick the ABA out of the pre-nomination process. In awarding Estrada its highest rating of Well Qualified, the ABA determined that Estrada had “the highest reputation for integrity” and had “demonstrate[d] the capacity for sound judicial temperament.” On what plausible basis would Leahy and Schumer now allow Bender’s idiosyncratic assessment to call the ABA’s rating into question?

It gets even worse when you look at Paul Bender. As Senator Orrin Hatch observed in his remarks at the committee hearing, Bender “is an extremist by even the most liberal standards.” One of his first actions as principal deputy was to try to “overturn the conviction of a repeat child pornographer and known pedophile” in the case of United States v. Knox. The Senate condemned Bender’s position by a vote of 100-0, the House did so by 425 to 3, and President Clinton then directed Attorney General Janet Reno to reverse it.

Bender was openly hostile to the career attorneys in OSG (including Estrada) who had joined the office during Republican administrations, and he volunteered to waive the three-year commitment they had made. One lawyer described Bender as an “old-school hippie radical,” and another called him an “awful jackass.” To add to his charm, he was incompetent at managing the office, often missing deadlines and needing to request extensions.

I’ll speculate that what really turned Bender against Estrada is that Estrada doesn’t suffer fools gladly and that he deploys a searing wit against them.

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It’s a common gimmick in a confirmation battle for senators to insist on receiving confidential records that they don’t need and that they know that the White House won’t provide. That’s exactly what the Democrats’ demand for Estrada’s OSG memos entailed.

The easiest way to show that the Democrats’ request was a sham is that they did not ask for John Roberts’s OSG records, even though George W. Bush nominated Roberts to another D.C. Circuit seat on the same day he nominated Estrada.

In response to the Democrats’ demand, all seven living former Solicitors General sent a letter to the committee in which they objected to this “attempt to intrude into the Office’s highly privileged deliberations”:

Our decisionmaking process required the unbridled, open exchange of ideas—an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality.

I’d make the same point a little less delicately: If attorneys with ambitious career goals—the very sort of high-quality folks OSG attracts—have to worry that anything they write will be taken out of context and distorted by political attack dogs, they won’t be able to do their jobs effectively.

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Senate Democrats finally gave Estrada a confirmation hearing in late September 2002, more than 16 months after his nomination. They showed that they were steadfastly against him. So his nomination appeared doomed.

But in the elections five weeks later, Republicans gained two seats to win control of the Senate in 2003. Democrats suddenly needed to find another way to prevent Estrada from being confirmed.