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WASHINGTON — The demise last week of the nomination of Miguel Estrada, 28 months after he was tapped for a seat on one of the nation’s most prestigious federal courts, will likely cast a shadow over the turbulent politics of judicial selection — and signal serious trouble for other nominees as the 2004 elections draw near. Estrada’s decision to withdraw his nomination to the D.C. Circuit U.S. Court of Appeals prompted sharp reactions from both sides. But lost in the immediate fallout were the likely consequences of the Estrada episode for other circuit court choices. Two conservative African-American lawyers recently tapped by President Bush for appellate seats were said by observers to be particularly vulnerable: D.C. Circuit nominee Janice Rogers Brown and Claude Allen, nominated for the Richmond, Va.-based Fourth Circuit. The debate over Estrada’s nomination was in significant part a proxy battle over the composition of the Supreme Court, where a vacancy is viewed by many observers as virtually certain to occur sometime during the Bush presidency. Many liberal activists and Democratic lawmakers viewed Estrada as a potential high court pick — and, as a Hispanic with a sterling resume of trial and appellate advocacy, a potentially difficult Supreme Court choice to fight since the high court has never had a Hispanic justice. Last week, some Republicans said Estrada, a 41-year-old Honduran immigrant and D.C. partner at Gibson, Dunn & Crutcher, was a victim of racism, while Democrats said the outcome vindicated their opposition to nominees whom they see as conservative ideologues. The past year has seen partisanship on both sides lead to gridlock. Still, the Democrats’ success in beating back the Estrada nomination will likely bolster Senate opposition to the White House’s conservative selections even more. The calendar will also put the squeeze on many nominations. It’s generally more difficult for any administration to push a judicial candidate through Congress in an election year, and the 2004 election season is just a few months away. The likely result is a process that will shut down many controversial nominees, particularly those who are minorities and are seen as possible choices for a Supreme Court vacancy. For example, Brown, 54, a California Supreme Court justice, has already drawn vehement opposition from liberal groups, with People for the American Way denouncing her as an extreme conservative on civil and constitutional rights. Allen, 42, deputy secretary of the U.S. Department of Health and Human Services, is opposed by liberals for what they view as his conservative ideology. Senate hearings have not yet been scheduled for Brown, Allen or White House Staff Secretary Brett Kavanaugh, 38, a former associate independent counsel to Kenneth Starr and another D.C. Circuit nominee opposed by many liberals. Elliot Mincberg, legal director of People for the American Way, says the Estrada result is important because “it shows that Democrats and progressives are willing to oppose a member of a minority group if that person’s right-wing activism threatens important rights, including the interests of minorities.” Says Nan Aron, president of the Alliance for Justice: “I think we are gaining momentum. Estrada has to be a lesson to the White House and to [Senate Majority Leader] Bill Frist that their strategy of secrecy and lack of consultation is not succeeding.” Administration officials and their allies in the Senate and in conservative legal circles, far from moving toward conciliation, say they will use the Estrada nomination as a rallying cry in 2004. Estrada was approved by a party-line vote of the Senate Judiciary Committee in January, but was then subjected to a virtually unprecedented six-month filibuster by the Senate’s Democratic minority. Seven times Republicans tried to end debate, and seven times they failed. The Democrats’ successful deployment of the filibuster, which is still being used against appeals court nominees Priscilla Owen for the Fifth Circuit and William Pryor Jr. for the Eleventh Circuit, has pushed Senate Republicans to what one GOP aide calls “anger beyond anger.” Smarting from a defeat that no one anticipated when the GOP regained control of the Senate this year, Republicans are vowing political payback. “For us, the gloves are off,” says Kay Daly, president of the Coalition for a Fair Judiciary, a group supporting President Bush’s nominees. “I hope this will be a wake-up call to Senate Republicans that the Democrats and the interest groups will stop at nothing to get their way.” Daly says her allies will ask each Democratic Senate candidate next year “whether they will support an up-or-down vote on every nominee appointed by the president” and will denounce anyone who refuses to make that pledge. Estrada’s withdrawal sends an “appalling” message to other minority aspirants, Daly says. “The message to immigrants is plain,” she says. “You can come to our shores and try to achieve your dream. But if you don’t embrace the liberal ideology of the left, you can forget about ever serving on the federal bench.” Asks a GOP Hill aide who is close to the nominations process: “We have two black nominees who are conservatives — Janice Rogers Brown and Claude Allen — and these people aren’t worthy? If Miguel Estrada is not qualified, who is qualified to be a Latino judge? This is a dark day for the Senate. This is not good for America.” Liberals reject allegations that Estrada was treated differently because of his ethnic background. “Conservatives who are minorities and do not have far-right judicial or legal philosophies are being confirmed,” says Mincberg. “This is a ludicrous charge,” says Aron. “Miguel Estrada would have been opposed even if he weren’t Hispanic, and he would have met a similar fate. The Senate has confirmed a lot of nominees who are people of color, and the White House knows it.” The Senate has confirmed 12 Hispanic judges nominated by President Bush. Two of those — Edward Prado for the Fifth Circuit and Consuelo Callahan for the Ninth Circuit — were for appeals courts, and another appeals nominee, Carlos Bea for the Ninth Circuit, had a hearing last week and is expected to be confirmed soon. Callahan and Bea served as state judges and are considered moderate conservatives. Prado, a former federal trial judge, is seen as a conservative judge. Eleven African-American Bush appointees have been confirmed. Four were for appeals courts: Barrington Parker Jr. of the Second Circuit, Roger Gregory and Allyson Duncan of the Fourth Circuit, and Lavenski Smith of the Eighth Circuit. Parker and Gregory had previously been nominated for the bench by President Clinton. Overall, Bush has nominated 196 federal judges, 138 of whom have been confirmed. Estrada told President Bush in a letter Thursday that he had decided to end his candidacy. He mentioned his desire to make long-term plans for his family and to devote full attention to his appellate practice at Gibson, Dunn. The timing was unexpected, but it is known that Estrada had been considering the step for months. One Hill source says that before Estrada sent his letter to the president, he met with White House Counsel Alberto Gonzales, who tried unsuccessfully to talk him out of his decision. Ashley Snee, a White House spokeswoman, did not return calls. Estrada declines comment — beyond a brief statement that he released expressing thanks to the president, members of the Senate and groups such as the American Bar Association for supporting his candidacy. In the statement, he also looked forward to being able to devote “undivided time and attention to my legal practice.” This means that Estrada leaves the glare of the political spotlight to continue his litigation work at Gibson, Dunn, where The American Lawyer magazine, a Recorder affiliate, reported that 2002 profits per partner exceeded $1 million. Last week, the firm announced that Estrada would step up to a leadership role as co-chairman of the firm’s appellate practice along with Los Angeles-based Theodore Boutrous Jr. “Miguel is a terrific lawyer,” says D.C. office head Stephanie Tsacoumis. “We’re happy that he’ll be back with us. Now he’ll be fully engaged.” Jonathan Groner is a reporter for Legal Times , a Recorder affiliate based in Washington, D.C.

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