Estrada Filibuster Escalates Partisan War Over Judiciary

Posted February 28, 2003 at 2:31pm

What on earth are Senate Democrats doing employing the legislative equivalent of a dirty bomb to block a lower-court nominee, Miguel Estrada, whose views they’re not sure of? [IMGCAP(1)]

One could understand resorting to a filibuster to block a notorious ideologue, a scoundrel — or someone who could overturn Roe v. Wade in the Supreme Court.

But Democrats are using the filibuster weapon to prevent Estrada from joining the U.S. Court of Appeals for the D.C. Circuit on the mere assumption that one day he’ll get to the high court and prove to be a “Hispanic Clarence Thomas.”

Maybe he would. But the way to find out would be to let the Senate vote on his nomination, which would put him on the appeals court, and then watch how he rules on cases.

Then, if he proved to be a right-winger and was nominated to the Supreme Court, Democrats would have a case to make against him — maybe even grounds to filibuster.

As matters stand, though, by using a weapon of mass destruction they are establishing a dangerous precedent that surely will come back to haunt them when Democrats regain control of the White House and the Senate. Republicans know how to filibuster, too.

It’s utterly and shamefully true that both parties have turned the federal judiciary into a political war zone. When they last controlled the Senate, Republicans blocked no fewer than 19 of President Bill Clinton’s appeals court nominees by simply denying them a hearing in the Judiciary Committee.

In the Estrada debate, it’s almost comical — if it weren’t so dispiriting — to listen to Republicans quote Democrats on the unfairness of blocking judicial nominees and Democrats quote Republicans on the legitimacy of “intense scrutiny.”

Who’s the hypocrite? Is it Democratic Sen. Patrick Leahy (Vt.), who said in 1998, “I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported,” and who’s now helping lead the filibuster against Estrada?

Or is it Republican Sen. Orrin Hatch (Utah), who now accuses Democrats of creating an “intellectual glass ceiling for Hispanics” by blocking Estrada, but as Judiciary chairman denied a hearing to Clinton nominee Christine Arguello and held up Richard Paez for four years?

The answer: They both are. And two other Hispanics, Jorge Rangel and Enrique Moreno, were blocked not by Hatch, but by other Republican Senators.

Democrats who used to abhor filibusters against judicial nominees now argue that they are not unprecedented, that debate-ending cloture motions have been filed to get to a vote on appeals court nominees 14 times since 1980.

They point out, correctly enough, that most recently Republicans tried to filibuster Paez’s nomination in 2000 and that 14 current Republican Senators voted against cloture, including now-Majority Leader Bill Frist (Tenn.).

But, still, it’s Democrats who are escalating the judicial wars because never before has there been a successful party-discipline filibuster against a lower-court nominee. The Paez effort failed, and he is now sitting on the 9th Circuit in California.

And the Estrada filibuster shows every sign of succeeding. Four Democrats have broken ranks to oppose the filibuster, but there are no signs that a necessary five more will do so.

Republicans hope to ratchet up pressure on such Democrats as Blanche Lincoln (Ark.), Jeff Bingaman (N.M.), Bob Graham (Fla.), Mary Landrieu (La.), Fritz Hollings (S.C.) and Evan Bayh (Ind.), but none shows signs of breaking.

If Democrats succeed in blocking Estrada, it’s likely they’ll employ the filibuster weapon again to block any nominee of President Bush’s they deem too conservative for their liking.

In fact, they’ll almost have to — in order to prove that their motives in the Estrada case aren’t racial.

Democrats claim, of course, that they’re merely holding up the nomination to gain more information about Estrada’s views by gaining access to memos he wrote as a staff attorney in the Justice Department during the Clinton administration.

But liberal groups such as People for the American Way are calling Estrada an “extremist” on the basis of his membership in the conservative Federalist Society. Liberal Hispanic groups oppose him because he’s not one of theirs. Moderate and conservative Latin groups back him.

And, almost unanimously, so do people he worked with in the Clinton administration solicitor general’s office, 14 of whom wrote that he would be “a fair and honest judge who would decide cases in accordance with legal principles and precedents, not on the basis of personal preferences or political viewpoints.”

Clinton’s solicitor general, Seth Waxman, expressed similar views, and all living former solicitors general of both parties have said that it’s illegitimate for the Senate to demand legal memos from the office and that they’ve never been tendered before.

The Democrats label Estrada a “stealth nominee” and repeat endlessly that he refused to answer any questions at all about his judicial philosophy at his Judiciary hearing.

Like practically all judicial nominees of both parties — including Clinton’s Supreme Court nominees — Estrada declined to answer pointed questions about issues likely to come before his court.

But he did give answers to more questions than Democrats recognize. Asked by Sen. Dianne Feinstein (Calif.) whether the Constitution contains rights to privacy and abortion, Estrada said that “the Supreme Court has so held.”

Asked if Roe v. Wade was “settled law,” Estrada replied, “I believe so.” Asked about affirmative action, he said that “any policy views I might have as a private citizen … would not enter into how I would approach any case that comes before me as a judge.”

The fact is, Democrats can’t be sure that Estrada will be a “Hispanic Clarence Thomas.” My guess is they don’t want Bush to be the first president to put a Hispanic on the Supreme Court. If that’s what’s going on here, it is shameful and will come back to haunt them.