Estrada’s Withdrawal Prompts Renewed Sniping Over Judicial Nominations

Posted September 4, 2003 at 12:52pm

Ending a 28-month battle for a seat on the second highest court in the land, Miguel Estrada on Thursday withdrew his name for consideration to become the first Hispanic appointed to the U.S Court of Appeals for the D.C. Circuit.

The news, delivered in a letter from Estrada to President Bush, set off a flurry of attacks and counter-attacks, reigniting many of the same political themes that played out in the battle over his nomination, which was blocked by a Democratic filibuster and brought on the most cloture votes ever on a judicial nomination.

While House Majority Leader Tom DeLay (R-Texas) echoed previous GOP attacks on Democrats for blocking a qualified Hispanic — he called the filibuster and Estrada’s subsequent withdrawal a “political hate crime” by Democrats — Senate Democrats countered that it was Bush’s fault.

Senate Minority Leader Tom Daschle (D-S.D.) agreed that Estrada was a “victim” of the process, but he put the blame squarely on the White House for refusing to reveal more information about Estrada’s background, particularly memos he wrote while serving in the solicitor general’s office in the first Bush and Clinton administrations.

“He paid the price for the administration’s determination to be obstructionist,” Daschle said, turning a favorite GOP attack line back on Republicans.

“I would say the victim in all this has been Miguel Estrada,” Senate Minority Whip Harry Reid (D-Nev.) said on the floor Wednesday, echoing the Democratic theme.

It’s unclear what the next steps will be for Republicans, in terms of attempted retribution at Democrats and the GOP’s long-running effort, seemingly stalled, at reforming the chamber’s rules to forbid filibusters on judicial nominees.

Majority Whip Mitch McConnell (R-Ky.) declined to speculate about whether the GOP would mount any vendetta campaign on Democrats, but Sen. Don Nickles (R-Okla.) said something clearly could be done. “There’s a lot of options, but I won’t enumerate them,” he said.

In the spring of 2002, after Senate Democrats used their majority to defeat the circuit court nomination of U.S. District Judge Charles Pickering in the Judiciary Committee, Republicans pounced, immediately placing a hold on a Daschle aide nominated to the Federal Communications Commission. In payback for the top Democrat on Judiciary, Sen. Pat Leahy (Vt.), Republicans blocked his request for additional committee funding to conduct a probe related to the Sept. 11, 2001, terrorist attacks.

Majority Leader Bill Frist (R-Tenn.) declined to speculate as to whether he would push to the floor his proposal to end filibusters, or whether he would go the so-called “nuclear” route and institute a party-line vote to change the rules.

Noting that Republicans “still have many options,” Frist indicated that these proposals were not ready to hit the floor anytime soon and the GOP would instead hope that a continuing grassroots efforts to exert political pressure on Democrats would yield success.

“I’m very hopeful this will be a sufficient message,” he said.

Just 42 years old, Estrada is a litigator for the Los Angeles-based firm Gibson, Dunn & Crutcher. Privately, friends and those who have spoken with Estrada have said that the worst-case scenario — withdrawing the nomination — is not so bad for him personally, leaving him to a lucrative practice in a more private life. Estrada, who lives in Northern Virginia, could easily be renominated for another position on the federal bench in a second Bush administration or in a future GOP White House. And Sen. George Allen (R-Va.) suggested Estrada could still be nominated to the Supreme Court even without having been confirmed to the lower-court post.

Estrada is one of three nominees whose nominations have been blocked by Democratic filibusters, the other two being Texas Supreme Court Justice Priscilla Owen and Alabama Attorney General William Pryor. Owen and Pryor are nominees to other circuit courts.

With Estrada’s blockade being the first, it became the symbolic battleground in the long-running and increasingly bitter fights over judicial nominations, a feud that reaches back into the Reagan administration in the mid-1980s.

Each side is now left to rally its base on the issue, with Republicans claiming they have made inroads into Hispanic voters. Democrats, meanwhile, claim the nomination was largely overlooked by a Hispanic population that, like most voters, is paying more attention to international crises and a stagnating domestic economy.

“This will be an issue,” promised Allen, chairman of the National Republican Senatorial Committee. Allen said that in the first few weeks after the Estrada filibuster began in the late winter, his committee rounded up 35,000 signatures through the Internet for petitions calling for the end of the filibuster.

Democrats, however, did anything but back down Wednesday, vowing to fight just as tough on other nominees. “This should serve as a wake-up call to the White House,” said Sen. Edward Kennedy (D-Mass.).

Sen. Charles Schumer (D-N.Y.) specifically said Democrats would not yield on Owen or Pryor: “They could bring them up for votes two more times, three more times, five more times. They won’t succeed.”

And Daschle said flatly that the next filibuster target for a circuit court spot, California Judge Carolyn Kuhl, will not get the 60 votes needed for confirmation. “I don’t think so,” he said.