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He has impressive conservative credentials: He’s a member of the Federalist Society. He worked for Kenneth Starr. And he is a former law partner of Theodore Olson’s. He also helped the National Organization for Women score an important win against abortion protesters and donated 450 hours of his time in an effort to spare the life of a condemned murderer in Virginia. Miguel Estrada is proving hard to pigeonhole. Nominated by President George W. Bush for a seat on the U.S. Circuit Court of Appeals for the D.C. Circuit, Estrada employs an approach to the law that is clearly conservative. But a close examination of his record and career belie his portrayal by some interest groups as a right-wing ideologue. The story of Estrada’s pursuit of a judgeship is proving to be a challenging one — and not just for the 39-year-old Honduran immigrant and Harvard Law School graduate in line to become the first Hispanic on the prestigious appeals court. For more than a decade, Latino legal organizations have pressed presidents of both parties to appoint more Hispanics to the federal bench. Bush’s selection of Estrada is now forcing some Hispanic leaders to choose between their desire to see a fellow Hispanic rise to an important judicial post and their generally liberal political views. “We are pleased, to the extent that we see the administration making efforts to increase diversity on the bench,” says Marisa Demeo, regional counsel of the Mexican American Legal Defense and Education Fund. But Demeo cautions that diversity must not “come at the expense of the [Hispanic] community itself and its legal needs.” Demeo says MALDEF is studying the nomination, but has not yet decided to endorse or oppose Estrada. The Puerto Rican Legal Defense and Education Fund is not nearly as ambivalent. Although the group hasn’t formally come out against Estrada, President and General Counsel Juan Figueroa says he is “very concerned” about the nomination. “From what I have seen, Estrada is to the right of the vast majority of Latinos in this country,” Figueroa says. “You can’t expect the Latino community to shoulder the burden of a very right-wing nomination. It is troubling.” But Larry Gonzales, Washington director of the National Association of Latino Elected and Appointed Officials, says, “I am glad that the president has made the decision to nominate a Latino, and on the surface at least, it looks like he’s qualified.” Gonzales also cautions that his group is still evaluating Estrada’s record and has not taken a stand. The Hispanic Bar Association of D.C. is coming close to an endorsement, though. Brigida Benitez, a Wilmer, Cutler & Pickering partner who chairs that Bar’s endorsements committee, says the panel “was impressed with [Estrada's] professional experience and achievements.” The Bar group is slated to vote this week on whether to formally endorse Estrada. To some Hispanics, Estrada’s nomination has the same ring that Clarence Thomas’ Supreme Court appointment had for some African-Americans a decade ago — although Estrada’s track record of publicly expressed views when he was selected was not nearly as extensive as Thomas’ was when he was picked. Both nominees were relatively young men — Thomas was 43, Estrada is only 39 — who some thought had been selected as much for their ethnicity as for their qualifications, and whom some saw as politically out of step with their own ethnic group. “There is a strong consensus among Hispanic attorneys and in the general Hispanic community that they don’t want a Hispanic Clarence Thomas,” says Carlos Ortiz, a New Jersey lawyer who is an adviser to the Supreme Court committee of the Hispanic National Bar Association. Ortiz says his group is exhaustively reviewing the Estrada nomination and has not reached a conclusion. He notes that the group has established a test that a Hispanic nominee “should have an exceptional reputation in the Hispanic community for proven and long-standing commitment to the interests and welfare of, and due process and equal justice for, the Hispanic community of the United States.” Estrada declines comment on his nomination. A senior Bush administration official says Estrada “has a wide breadth of support from the Hispanic community,” while noting that Estrada’s selection was “not based on his [ethnic] background.” “He is an absolutely superb lawyer,” the official says. “Of course, the fact that he has a compelling life story and has overcome so many obstacles only adds to his qualifications.” A confirmation hearing for Estrada seems weeks away. The Senate is still not fully reorganized under Democratic leadership, and no hearings have been scheduled on any judicial nominees. Furthermore, the American Bar Association, which last week made recommendations on several Bush nominees, has not yet rated Estrada. FROM HONDURAS TO THE HIGH COURT Estrada’s life represents a remarkable success story. His father was a commercial lawyer in Tegucigalpa, the capital of Honduras. His parents divorced when he was 4 years old, and his father got custody. Estrada came to the United States at age 17 to attend college and to live with his mother, who had relocated to Long Island. He learned English as his second language, then graduated from Columbia College and Harvard Law School, where he served on the law review. Estrada clerked for Supreme Court Justice Anthony Kennedy, worked for Wachtell, Lipton, Rosen & Katz in New York for a year, and then became an assistant U.S. Attorney in the Southern District of New York. Specializing in criminal appeals, he quickly rose to deputy chief of the office’s Appellate Section. In 1992, he was hired by then-Solicitor General Starr to serve at the end of the administration of President George Bush. Estrada stayed in the office for the next four years under President Bill Clinton before leaving government service to join the D.C. office of Gibson, Dunn & Crutcher, where he worked in the shop run by current Solicitor General Theodore Olson. Last month, Estrada endorsed a major tenet of conservative judicial thinking in the Senate questionnaire he filled out in anticipation of confirmation hearings. Federal judges, he said, should “decide only concrete cases or controversies that properly come to them; they may not ‘make law’ or reach beyond the facts and circumstances of the particular case they must decide.” While at Gibson Dunn, Estrada wrote an amicus brief supporting a controversial Chicago law banning “loitering” by street gang members and publicly debated an American Civil Liberties Union leader on the law’s constitutionality. The Supreme Court sided with the ACLU by a 6-3 margin in Chicago v. Morales in 1999. Although it’s clear that Estrada has conservative credentials and supports some conservative causes, he is not viewed as doctrinaire. “He would, as a judge, absolutely keep an open mind in any type of case,” says John Manning, a Columbia University law professor who has known Estrada since law school and worked with him in the SG’s office. “He has a lot of pride in the finished legal product. He’s a lawyer’s lawyer.” In 1994, Estrada successfully took the side of the National Organization for Women in an abortion protest case, arguing for the U.S. government as amicus curiae. The issue was whether the Racketeer Influenced and Corrupt Organizations statute can be used against conspirators whose motive is not economic. With Estrada’s help, NOW, which was seeking damages against anti-abortion protesters, won a unanimous high court ruling that RICO can be applied that way. Building on his New York prosecutor’s expertise, Estrada quickly became the SG’s office’s expert on criminal law. He unsuccessfully defended the government’s efforts to seize the property of a fugitive without a hearing, and won a case upholding a law extending the prison sentences of federal gun law violators. But at Gibson Dunn, where he became a partner last year, Estrada spent 450 pro bono hours trying to persuade the Supreme Court to set aside a Virginia death sentence on the grounds of prosecutorial misconduct. Estrada, who is a principled supporter of capital punishment, lost that case, Strickler v. Greene, in a 7-2 ruling in 1999, and his client, Tommy Strickler, was executed. At Gibson Dunn, Estrada has focused on civil trial and appellate work. In his most important current case, he is lead counsel for Aetna Inc., defending a series of nationwide class actions alleging that the health insurer’s cost containment efforts are so restrictive of patients’ rights as to violate racketeering laws. Estrada’s r�sum� also shows his interest in social reform, with a conservative bent. He is a board member of the New York-based Center for the Community Interest, which argues that loitering, panhandling, and similar “minor” offenses can significantly harm society and which encourages efforts to limit such conduct. One thing that does not appear on Estrada’s official r�sum� is an affiliation with a Hispanic organization of any sort. But Hispanic leaders disagree sharply on whether this absence should make any difference in his nomination. Says Figueroa of the Puerto Rican group: “If he is going to be picked out of the pile because he is Hispanic, then it’s only fair play for us to ask: ‘What are his Hispanic credentials?’ He is supposed to bring a particular perspective or sensitivity, and as far as we can see, there’s no affiliation with the Hispanic community in any way. So it’s fair game for us to question it.” MALDEF’s Demeo flatly rejects this approach. “I don’t know that this says anything about how Estrada would handle an issue as a judge,” she says. “Our role is to evaluate whether someone is qualified. We just can’t go down that road of trying to assess the ethnic identification of a candidate.” Demeo says other civil rights groups, such as the Alliance for Justice and People for the American Way, are looking to MALDEF to take the lead on the Estrada nomination since he is Hispanic and MALDEF is “the most active Latino legal group in this [civil rights] coalition.” Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law, says her group has also been actively looking into the nomination. “As soon as he was nominated last month,” says Arnwine, “we started receiving calls expressing concern. The majority felt that Estrada did not have the proper judicial temperament, and some said he had extremist conservative views.” The temperament problems, Arnwine says, involve allegations that Estrada “harangues his colleagues” and “doesn’t listen to other people.” She did not offer any specifics, saying that the Lawyers’ Committee “is in the process of doing a thorough investigation,” but has not set a date for its completion. But interviews with lawyers who clerked with Estrada and who have worked with him offer little evidence that he is unsuited for the bench. “I never saw Miguel conduct himself in an improper manner or be rude to anyone,” says Andrew McBride, a clerk to Justice Sandra Day O’Connor in 1988 and 1989 and now a partner at Wiley, Rein & Fielding. “He does express his views forcefully. He has a clever sense of humor. But he is not mean-spirited.” Ronald Mann, a University of Michigan law professor who worked with Estrada at the SG’s office, says, “He’s brutally honest. He would come into your office and say your brief is terrible, and you’re not going to win. He’s perfectly willing to puncture that little bubble of security. But it’s much better for Miguel to do it than for Justice Scalia to do it.” Randolph Moss, who clerked for Justice John Paul Stevens while Estrada clerked for Kennedy, says he “did not find Estrada at all divisive. He was always an extremely principled guy, very honest and ethical. I worked amicably with him.” Moss, head of the Justice Department’s Office of Legal Counsel in the Clinton administration and now a partner at Wilmer, Cutler & Pickering, has endorsed Estrada for the bench. Teresa Wynn Roseborough, who also clerked for Stevens at the time and was deputy head of OLC under Clinton, offers a more mixed report. Roseborough, who argued a phase of last year’s Bush v. Gore election case at the 11th Circuit on behalf of the Democrat, says Estrada is “dizzyingly smart” and “ranks very high in terms of conscientiousness, talent, and ethics.” But Roseborough, an Atlanta partner at Sutherland, Asbill & Brennan, says there may be a downside to Estrada’s intellectual panache and self-confidence. Some people, she says, “might find Estrada’s views so extreme that they’d be concerned that as a member of a panel he might not give sufficient ear to divergent viewpoints expressed by other judges.” “He will give true voice to conservative legal principles,” Roseborough concludes. “He will argue his viewpoint. He will be an ardent, forceful voice on the court and a very good judge. We’re very good friends. I just violently disagree with his view of the world.”

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