Estrada: Just One Vote Away?

One hallmark of Sen. Patrick Leahy’s tenure as chairman of the Senate Judiciary Committee this year is that all judicial nominees who have come before the panel for hearings have promptly gotten up-or-down votes. Until now. Miguel Estrada, the controversial nominee for the U.S. Court of Appeals for the D.C. Circuit who was the subject of a rancorous Sept. 26 hearing, is not likely to see a vote on his nomination before the end of the 107th Congress. Senate Democrats and the White House are locked in a dispute over internal Justice Department memos written by Estrada between 1992 and 1997, and it appears that without a resolution, the nomination will not go forward. The memos were the focus of much of the daylong hearing, but the reason for that may have as much to do with the politics of judicial nominations as it does with Estrada’s views on the law. If the committee were to vote on him before the end of the term, it seems reasonably likely that Estrada might be able to pry loose one Democratic vote, all he would need to get his name out of committee and to the safety of the Senate floor. That would be more than two of President George W. Bush’s other controversial circuit court nominees were able to do. Charles Pickering Sr. and Priscilla Owen, both named to the 5th Circuit, were defeated in committee with the votes falling 10-9 along party lines. But Estrada may have some chance of scoring the support of Sen. Dianne Feinstein, D-Calif. Early in last week’s hearing, Feinstein mentioned that she had met privately the previous day with Estrada and found the meeting “very helpful.” In response to Feinstein’s question about his views on Roe v. Wade, Estrada said that although he would not discuss whether Roe was correctly decided, “it is there, it is settled law, and I would follow it.” Feinstein is known to be a fierce protector of abortion rights. And there are other political considerations in connection with the nomination of Estrada, a native of Honduras who would be the first Hispanic on the D.C. Circuit. Hispanics make up a large and growing percentage of voters in California, and Feinstein might not want to cast a vote against someone who has been a highly visible immigrant success story and who could be a U.S. Supreme Court nominee someday. (A Feinstein spokesperson did not return a call seeking comment.) While the nomination has led to sharp divisions among Hispanic bar and advocacy groups, by and large the senators did not explore racial issues at the hearing. They were more interested in learning about Estrada’s views on such legal issues as abortion, racial profiling, and the reach of federal regulatory power — and often expressed frustration about what they saw as a dearth of information on these questions. NEW YORK STORY Sen. Charles Schumer, D-N.Y., who chaired the hearing, and Sen. Edward Kennedy, D-Mass., told Estrada bluntly that they didn’t have enough information about his views and judicial philosophy to permit them to vote on his nomination. Democratic senators repeatedly renewed their call for access to internal memorandums that Estrada, now a D.C. partner at Gibson, Dunn & Crutcher, wrote in the 1990s as a lawyer in the solicitor general’s office. During his testimony, Estrada said he would not personally oppose release of the records, although he noted that the Department of Justice has important “institutional interests” in withholding them, and several former solicitors general have said as much in a letter to the committee. Earlier this year, the administration flatly rejected Leahy’s request for the documents. A high-ranking Republican Senate staffer says that the administration “will never turn over the work product of the solicitor general’s office.” As a result, there will be no vote on Estrada this year, says this source. Instead, “there will be blood on the floor” as a result of the Democrats’ refusal to move the nomination along. “Estrada will be a campaign issue in every major Senate race this fall,” the staffer says, adding that if the GOP takes control of the Senate after the November elections, President Bush will promptly renominate Estrada and others such as Owen. In a Republican-controlled Senate, both would be shoo-ins for confirmation. But a high-ranking administration official expressed a slightly more conciliatory view on the SG memorandums the day after the Estrada hearing. “We are always open to communicating with the committee to explore ways of satisfying the committee’s interests, while preserving the confidentiality of these documents,” said this official, who added it is “much too early” to discuss possible negotiations that could break the logjam. Even if a compromise is reached, time would not be on Estrada’s side. All 19 committee members are allowed to pose written questions to a nominee after a hearing, and it has taken several weeks for earlier nominees like Owen to file full responses. RECRUITING CLERKS While the memos were raised at the beginning and the end of the hearing, the most curious moment touched on advice that Estrada allegedly gave to Supreme Court Justice Anthony Kennedy. Estrada, 41, clerked for Kennedy in 1988-89, and at the request of the justice he later interviewed candidates to clerk for Kennedy in later terms. According to an article that appeared in The Nation last week, two lawyers who declined to be identified by name recalled that Estrada tried to weed out clerk candidates who were too liberal, using an “ideological litmus test.” In response to questions by Schumer and Feinstein, Estrada denied that he had done that and said that any reference to politics could only have been “a joke.” But after the lunch break and unprompted by committee members, Estrada reopened the issue to clarify that if he thought a clerk applicant “had a very strong view, left-wing or right-wing, that he or she can’t set aside,” he would have let Kennedy know that the person might be too rigid to serve effectively as a clerk. He continued to deny that he had tried to keep liberals out. Schumer repeatedly pressed for a yes-or-no answer on the broad question of whether Estrada took ideology into account in relation to the clerkships, and Estrada repeatedly refused to give a concise response. “I think we have some credibility problems here,” Schumer said, contending that Estrada had changed his story. Sen. Orrin Hatch, R-Utah, the panel’s ranking minority member, jumped in at this point, saying, “This is offensive. He’s being very badly treated by this committee.” Schumer also asked Estrada to name three Supreme Court decisions from the last 40 years that he disagreed with. Estrada refused to do so, saying he was not familiar enough with the facts and arguments in each case to give informed criticisms. An administration official says all nominees are advised not to discuss court rulings, past or present, unless they have already expressed a view about a case in writing before being nominated. “That is the right thing to do in terms of avoiding a perception of lack of impartiality,” says the official. “There are limits to what a nominee can properly say.” But liberal critics of Estrada say his refusal to answer these questions makes it impossible for the committee to do its job properly. “It has not been since [the Supreme Court nomination of] Antonin Scalia that a nominee was so unwilling to discuss past cases,” says Elliot Mincberg, legal director of People for the American Way, which has expressed serious concern, though not formal opposition, to Estrada. “Scalia got away with it, but things are different now. There is a greater recognition of the need to get information about nominees before they are voted on.” Hatch told the committee that Democrats “have been unable to find anything [about Estrada] that they can chew on and spit out at us, so they now say that we simply do not know enough about Mr. Estrada to confirm him. Well, it’s not that we do not know enough. We know as much about him as we have known about any nominee.” At the end of the six-hour hearing, Schumer said, “Many of us have more questions than answers. You will not answer my questions about your views of previous or prospective cases. That makes it even more important that we be able to see the record that you compiled in the SG’s office. I hope we can come to an accommodation with the administration and get the records.”