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The judges on the U.S. Court of Appeals for the D.C. Circuit are rarely the subject of political demonstrations. So last week’s noisy rally on the Senate grounds on behalf of stalled nominee Miguel Estrada had something of the surreal about it. Cries of “Viva Miguel” rang out from a crowd of about 50 that gathered to hear Republican senators denounce their Democratic colleagues and try to pressure them into scheduling a hearing for the Gibson, Dunn & Crutcher partner. It was the most striking example yet of how the Estrada feud has become more a matter of symbol than of substance. While partisans hosted dueling events on April 10, Estrada himself was far away at a conference in his native Honduras. Similarly, the particulars of Estrada’s legal career have not been part of the furor. Embraced by conservatives as an embodiment of the American dream and denounced by liberals as a conservative ideologue, Estrada has compiled a record more complex than either of those broad-brush portrayals. The 40-year-old nominee, who declined comment for this article, is unquestionably a high-powered thinker and a skilled litigator with conservative leanings. His colleagues at Gibson Dunn routinely turn to him for trial and appellate advice. One partner says Estrada “could almost be viewed as my research tool of first resort: If there’s a case on point, he’d know what it was, who decided it, and what volume of U.S. Reports it’s in.” THIN PAPER TRAIL But his paper trail offers only a few glimpses into his legal philosophy. Estrada has written little except legal briefs. A rather dry 1985 student note in the Harvard Law Review on international lending policies says nothing about his policy preferences. He has given no formal speeches and few public talks, other than continuing legal education workshops on appellate practice. He has solid conservative credentials as a member of the Federalist Society, a former clerk for Justice Anthony Kennedy, and a former colleague of current Solicitor General Theodore Olson. But as a lawyer in the Clinton-era solicitor general’s office, he also supported the National Organization for Women with an amicus brief in NOW’s novel and successful strategy of using the Racketeer Influenced and Corrupt Organizations Act to curb anti-abortion protesters. One running theme for Estrada is the often controversial idea of improving quality of life by curtailing loitering and other petty crimes — what is sometimes called the “broken windows” approach to law enforcement. In 1997, Estrada wrote a pro bono amicus brief defending a Chicago ordinance that made it unlawful for members of street gangs to loiter in public spaces. He also appeared on a National Public Radio debate to defend his position, arguing against Harvey Grossman, the legal director of the Illinois American Civil Liberties Union. The Supreme Court struck down the ordinance on First Amendment grounds by a 6-3 margin. Estrada took up the issue again last year, representing the city of Annapolis, Md., on a pro bono basis after the ACLU brought suit against the enforcement of that city’s anti-loitering law. U.S. District Judge Catherine Blake of Maryland struck down the law, holding on March 30, 2001, that it “criminalizes a substantial amount of protected activity,” terming it vague, and saying that it could be used disproportionately against minorities. Attorneys for Annapolis decided not to appeal. Estrada has served as a board member of the Center for the Community Interest, a New York-based group that includes moderates and conservatives and focuses on quality-of-life issues. But for the most part, Estrada’s career has been spent in the relatively nonideological realms of big-firm litigation and criminal law. After emigrating from Honduras at age 17 and graduating from Columbia College and Harvard Law School, Estrada moved on to a clerkship on the 2nd U.S. Circuit Court of Appeals and then clerked for Justice Kennedy from 1988 to 1989. He spent a year at New York’s Wachtell, Lipton, Rosen & Katz, then was a federal prosecutor in Manhattan for two years. In 1992 he joined the solicitor general’s office under Kenneth Starr, arguing 15 cases before the Supreme Court and staying on well into the Clinton years. Though Starr’s office handled several ideologically tinged matters — including one abortion case argued by Estrada’s fellow D.C. Circuit nominee, Hogan & Hartson’s John Roberts Jr. — Estrada’s work was not of that nature. At the SG’s office, Estrada became something of an in-house expert on criminal law. Otto Obermaier, who had earlier been his boss as U.S. attorney in Manhattan, says Estrada was a good choice for the job “because so few people who argue before the Supremes know anything about the nitty-gritty of the criminal process.” Estrada’s cases covered matters including sentencing, evidence, and the scope of federal criminal law. PRIVATE PRACTICE IN WASHINGTON He went to the D.C. office of Los Angeles-based Gibson Dunn in 1997 as an appellate specialist and made partner in 2000. At the firm he spends most of his time on complex health care litigation, defending Aetna Inc. in two cases filed as class actions in Florida federal court against most of the nation’s HMOs. One case was filed on behalf of millions of HMO subscribers who allege that health plans conspired to withhold needed medical care. The other was filed by doctors who claim that the plans worked together to limit physician reimbursements. Estrada heads the appellate briefing committee that works on behalf of all the defendants. Also in private practice, Estrada has taken a whistleblower’s side and argued that the False Claims Act, which gives individuals the right to sue on the federal government’s behalf to stop contractor fraud, can be used against a state government. In 2000, the Supreme Court rejected his arguments by a 7-2 vote in Vermont Agency of Natural Resources v. United States ex rel. Stevens. Liberal advocacy groups have been scrutinizing Estrada’s career for months but have found little to go on. Nan Aron, president of the liberal Alliance for Justice, which has taken no position on Estrada, says, “There is a dearth of information about Estrada’s record, which places a responsibility on the part of senators to develop a record at his hearing. There is much that he has done that is not apparent.” One leader of the liberal coalition is considering launching an effort to obtain internal memos that Estrada wrote while at the SG’s office, hoping they will shed light on the nominee’s personal views. But if Estrada’s past is not as well-documented as that of Charles Pickering Sr., whose every move as a state lawmaker and federal judge was scrutinized in the course of his failed 5th Circuit nomination, it hasn’t stopped debate. At the April 10 demonstration, staid Republican senators shared the stage with Hispanic demonstrators who waved signs in English and Spanish that read, “Set the Captives Free,” referring to the George W. Bush judicial nominees who have not been confirmed by the Senate. Estrada’s supporters played the ethnic card dozens of times in the 45-minute demonstration. They referred to Estrada as a likely choice to someday become the first Hispanic justice on the U.S. Supreme Court. “You don’t have to be afraid [to confirm a Hispanic judge],” said Sen. Pete Domenici, R-N.M. “Hispanics are great lawyers and great judges. We elect them all the time in New Mexico. And if it so happens that Estrada goes farther, so be it. He’ll go farther because he is qualified.” Sen. Orrin Hatch, R-Utah, and others denounced Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., for not setting a hearing on Estrada. Leahy has pledged to hold a hearing on Estrada and two other controversial Bush nominees this year, but has not yet done so. Later that day, Leahy responded to the criticism and lashed back. “To contend that Mr. Estrada, a young attorney with no judicial experience, is the only Hispanic who could be a nominee to a potential vacancy on the Supreme Court of the United States does a disservice to the many outstanding Hispanic judges serving in our federal and state courts,” Leahy said in a statement. “The Republican campaign to paint a picture of unfairness in the handling of this or other judicial nominees is pure partisan bunk that is flatly refuted by the record.”

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