It isn’t election season, but another kind of political battle is being fought, and it’s just as full of angry polemics as any Senate or presidential race: the struggle over President Bush’s nominee to the federal appeals court in Washington, Miguel Estrada. On Monday, Senate Democrats, using a tradition that protects the rights of the minority, resume their filibuster of Estrada’s nomination, which has stymied the Senate for three weeks.
In May of 2001, Bush nominated Estrada, a former litigator in the Department of Justice during the Clinton administration, to serve on the Court of Appeals for the District of Columbia Circuit.
VETERAN LITIGATOR Estrada, who emigrated from Honduras at age 17, graduated from Harvard Law School and clerked for Supreme Court Justice Anthony Kennedy, has argued 15 cases before the Supreme Court, a high number for a lawyer who is only 41 year old.
But Democratic senators say Estrada has not revealed enough of his legal philosophy to deserve confirmation.
As long as they can muster 41 votes to sustain their filibuster, they can block a confirmation vote. Three Democratic senators have joined all 51 Republicans in supporting him, so Estrada would win confirmation, but he is still six short of the 60 votes he needs to overcome the filibuster.
This battle is kindled in part by pent-up Democratic frustration over not only their losses in the 2002 elections, but the 2000 presidential election as well.
Al Gore missed his chance to pick two or three Supreme Court justices. During the 2000 campaign, Gore had made a point of attacking conservative Justices Antonin Scalia, Clarence Thomas and William Rehnquist by name.
He left no doubt he’d appoint ideological opposites of Scalia, Thomas and Rehnquist if he got the chance.
So bitter was the residue from the 2000 election that a leading Democratic lawyer, Abner Mikva, who served as White House counsel under President Clinton, declared that the Senate ought to block confirmation of any Bush nominee to the Supreme Court until after the 2004 election.
Mikva’s reasoning: Bush does not have “a popular mandate” since he did not win a majority of the popular vote in 2000.
GROOMED FOR THE HIGH COURT One of the justices may well choose this June as the date to announce his or her retirement from the high court.
Judiciary Committee chairman Sen. Orrin Hatch, R-Utah, touts Estrada himself as a potential nominee to a Supreme Court vacancy, although June would likely be too soon. The Democrats’ filibuster may mean that Estrada would not take a seat on the appeals court until March or April, if at all.
In last November’s elections, Democrats lost control of the Senate and thus lost their grip on the Judiciary Committee, which had allowed them to keep Estrada’s nomination bottled up since 2001.
Hatch is moving Estrada and other long-delayed Bush nominees through the committee as briskly as he can, prompting complaints from Democrats, who recall that then-Sen. John Ashcroft and other Republicans dragged their feet on Clinton’s nominees when the GOP had Senate control during his presidency.
“The confirmation process is not immune from politics, but a particularly virulent strain has now infected the Senate and politicizing the process to the point of paralysis,” lamented Sen. Patrick Leahy, D-Vermont, the senior Democrat on the Judiciary Committee, in 1998.
Democrats remember that it was Ashcroft who derailed Clinton nominees Ronnie White and Frederica Massiah-Jackson, both of whom he accused of being too sympathetic to criminal defendants.
Massiah-Jackson withdrew her name in 1998 in the face of a likely defeat. The Senate rejected White’s nomination in 1999 on a party-line vote.
When Ashcroft was trying to win Senate confirmation as attorney general in 2001, Sen. Barbara Boxer, D-Calif. accused him of “a political lynching” of White, who is an African-American. Earlier, Rep. Maxine Waters, D-Calif., had called Ashcroft “a racist” for opposing White.
COURTING LATINO VOTERS Brutal confirmation combat is nothing new.
The Senate fought epic battles over Ashcroft in 2001, over Clarence Thomas in 1991, and over Robert Bork in 1987.
But a new twist in the Estrada case is that Republicans are using ethnic politics to try to generate support for Bush among Latino voters.
According to exit poll interviews in the 2000 election, Gore received about 62 percent of the votes of Latinos who cast ballots, while Bush got about 35 percent.
Latino voters are important not only in Florida, which Bush barely won in 2000, but in states with more recent booms in Latino population such as Iowa, where an estimated 20,000 Latinos are registered to vote.
Gore won Iowa by a mere 4,144 votes in 2000. If Bush can do a bit better among Latino voters, he could carry that state in 2004, as well as others.
Republicans say Democrats are singling out Estrada because they can not tolerate the idea of a Latino conservative.
“It is accepted that Miguel Estrada is a conservative,” Sen. Rick Santorum, R-Pa., said during the Senate debate. “That is consistent with most, if not all, of President Bush’s nominees.”
Santorum then asked, “So what is different about Miguel Estrada?” and answered, “We have someone who is a conservative and a minority. That’s the combination that’s lethal.”
Bush appeared on Telemundo, the Spanish-language television network, last week to denounce the filibuster.
He boosted Estrada again in his radio address Saturday, saying, “If confirmed, Miguel Estrada would be the first Hispanic American ever to serve on this (D.C. Circuit appeals) court, which is often considered the second highest in the land. He would break through a barrier that has stood for too long.”
WHO IS ‘GENUINE’? Estrada’s nomination has also become a fight over who is a “genuine” Latino and who gets to define who is a “genuine” Latino.
“Estrada is Latino in name, but not necessarily in experience or perspective,” said one of his adversaries, Juan Figueroa, the president of the Puerto Rican Legal Defense and Education Fund in New York City.
Despite this argument, Estrada is backed by the four Republican Latino members of the House of Representatives.
Estrada’s critics say that he has shown “insensitivity” to Latinos and other minorities.
As evidence, they cite his work for the cities of Chicago and Annapolis, Md., as counsel defending their anti-loitering ordinances, which Estrada’s foes say are used in a discriminatory fashion against ethnic minorities.
According to the Chicago Tribune, that city’s ordinance “was badly written law, but it was supported by several black and Hispanic aldermen who saw it as essential for fighting street gangs.”
STARR DEFENDER Another piece of evidence Estrada’s foes cite in making the insensitivity charge: In a 1998 article in USA Today about how Supreme Court justices had hired relatively few blacks or Latinos as law clerks, he voiced skepticism that there was a problem.
“If there was some reason for under-representation, it would be something to look into,” Estrada said. “But I don’t have any reason to think it’s anything other than a reflection of trends in society.”
Estrada also raised a red flag with Democrats by coming to the defense of independent counsel Kenneth Starr during the Clinton impeachment saga in 1998.
As Starr presented his findings to the House Judiciary Committee, Estrada said, “This hard-working, mild-mannered fellow has been demonized.”
Ronnie White, Frederica Massiah-Jackson, Kenneth Starr, Robert Bork, Clarence Thomas — all have had their chance to appear in the role of demon, or victim.
Now it is Estrada’s turn.