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July|August 2003
Second-Class Citizens By Chris Mooney
Ideology Matters By Katherine Marsh
For the Record By Nicholas Thompson
Is Everything Sacred? By Jori Finkel

Ideology Matters

The Estrada filibuster and the politics of confirmation.

By Katherine Marsh

THIS PAST WINTER, AS THE COUNTRY PREPARED FOR WAR, senators from both parties spent hour after hour debating on the Senate floor, sometimes until midnight, engaged in histrionics, tag-team rants, and good old-fashioned name calling. The topic of discussion (if it can be called that) was Miguel Estrada, President Bush's nominee to the federal court of appeals in Washington, D.C. Orrin Hatch, the Republican who chairs the Senate Judiciary Committee, said that the Democrats were treating Estrada more shabbily than any Republican nominee he'd seen in his 27 years in the Senate. "Nobody has had to endure the calumny and the downright despicable comments" that Estrada has, he thundered one evening. Harry Reid, the Democratic minority whip, jumped in to suggest that the use of "despicable" was a breach of Senate decorum. Hatch withdrew it—and a moment later snapped that it was "probably the right word."

The clash over Estrada began in the first months of the Bush Administration, when the president included him in a slate of 11 nominees for the federal bench. Senator Charles Schumer responded by calling a Judiciary Committee hearing titled, "Should Ideology Matter?" He answered the question affirmatively. The time had come, he argued, to oppose nominees selected "to further tilt the courts in an ideological direction."

Schumer's stance was controversial. In their efforts to scuttle past nominations, both parties have found ammunition in a candidate's rulings on another court, racially insensitive affiliations, sexual peccadilloes, or off-the-books nanny. Each time, opponents have looked for something in the nominee's record that would make him or her toxic—something other than being too far to the left or to the right. The toxic factor has changed with each successive nominee because the Constitution's "advice and consent" clause leaves the Senate's role in picking and approving federal judges so open-ended. "There's no common understanding of the rules of the game," said Ronald Klain, a former associate White House counsel to Bill Clinton. "A lot of the rules should be written down, but a lot of them aren't."

The scramble to attack and defend controversial nominees has intensified under Bush. While President Clinton preferred to make deals with Senate Republicans by nominating moderates like Merrick Garland, who now sits on the D.C. Court of Appeals, the Bush Administration has shown little interest in holding out an olive branch to the Democrats. In his first year in office, Bush nominated 29 appeals court judges, compared to five in Clinton's first year. Most of them were distinctly conservative. "You're not getting the middle-of-the-road people nominated," said Sheldon Goldman, a political science professor at the University of Massachusetts.

The Democrats have confirmed 17 of the 29, including two Clinton-era holdovers. To bow more often to the president's will, they argue, would be to tip the balance of the federal judiciary rightward for a generation. "I would vote for one Scalia and one Brennan, but not five Scalias," Schumer explained recently.

To help him make the case that many Scalias are what he's being asked to confirm, the liberal interest groups that track judicial nominations—chiefly the Alliance for Justice (AFJ) and People for the American Way (PFAW)—have increased their scrutiny of appeals court nominees. Conservative groups like the Committee for Justice have responded in kind.

There are 13 federal appeals courts around the country with 179 seats, 50 of which are currently vacant. Of the roughly 28,000 appellate court decisions made each year, only 80 to 90 are reviewed by the Supreme Court. So the appeals courts are the final arbiters in a supermajority of federal cases, dealing with everything from the rights of the disabled to wetlands development to the death penalty.

The D.C. Circuit is perhaps the most significant appeals court. Its power of review extends to dozens of federal agencies, including the Environmental Protection Agency and the Federal Trade Commission. The court has produced three current Supreme Court justices. It's now split between four judges nominated by Republicans and four nominated by Democrats, with three senior judges who carry reduced caseloads thrown into the mix.

To the senators who ranted at each other on those winter nights, however, the Estrada nomination was about more than one judgeship or even the balance of a key court. For Democrats, the battle was a show of strength against the Administration's aggressive nominating tactics—and a dress rehearsal for Bush's first nomination to the Supreme Court. For the Republicans, it was a chance to put onto a feeder court a lawyer they saw as a future candidate for the high court. As a result, inside the Beltway, Estrada drew the kind of attention that used to be reserved for Supreme Court nominees.

But the rest of the country wasn't paying much attention at all—and little in Estrada's record was likely to make them. The Democrats and the liberal interest groups were certain that Estrada was ideologically extreme, but their investigations produced none of the toxic revelations that had gotten the public worked up in the past. They had to find a new way to sink him.

MIGUEL ANGEL ESTRADA GREW UP in a comfortable, middle-class family in Honduras, the son of a lawyer and an accountant. Now 41, he immigrated when he was 17 to the United States, where his mother and sister had come to live after his parents' divorce. After a stint at the State University of New York at Old Westbury, he transferred to Columbia and graduated magna cum laude, with election to Phi Beta Kappa.

From childhood, Estrada leaned to the right, but how far is debatable. "We used to joke that there's a straight line in the center, and he steps on the right and I step on the left," his mother, Clara Castenada, told The Washington Post in March. "But fanatically conservative? I don't think so."

In 1983, Estrada entered Harvard Law School, where he again graduated magna. He worked on the law review there with Klain, who describes his former classmate as smart, scrupulous, and open-minded. "I've known him for almost 20 years," Klain said. "His political views probably are conservative, but I believe he can and will put them aside."

After clerking on the Supreme Court for Justice Anthony Kennedy, a member of its conservative majority, and working for two years as an assistant U.S. attorney in New York, Estrada became one of about 20 assistants to the solicitor general under Clinton. His colleagues have described him as a brilliant lawyer. Some also felt he could be haughty, ideologically driven, inflexible, and hard to get along with.

After five years in the S.G.'s office, Estrada became a partner at Gibson, Dunn & Crutcher, the law firm of Theodore Olson, Bush's choice for S.G. Among his clients was Aetna, which he defended against class-action claims alleging that the health-care provider gives incentives to doctors to provide substandard care. Estrada also defended a death row inmate pro bono. He collected standard conservative credentials, like membership in the Federalist Society, an influential forum about limited government and the law. And according to the Alliance for Justice, he participated in preparing the briefs for Bush in Bush v. Gore, which Olson argued on behalf of the president.

Throughout his career, however, Estrada has written little for public consumption. "I have not written books, articles, or reports, save for a law review note I authored while I was a student at Harvard Law School," he reported on his Senate questionnaire, which the Judiciary Committee routinely sends to nominees asking about their biographical and career experiences. Estrada's student note didn't reveal much about his ideology: It was about the lending limits imposed on national banks.

ESTRADA'S CANDIDACY PROVIDED A TEXTBOOK EXAMPLE of the lessons that Republicans have learned about judicial nominations over the past two decades, starting with Judge Robert Bork's famously botched Supreme Court confirmation in 1987. Bork's extensive public record, his snappish answers before the Judiciary Committee, and his willingness to discuss his views on lightning-rod cases like Roe v. Wade led his detractors to claim that he lacked the right judicial temperament. Bork said recently, "I had written a great deal and that was a mistake."

Four years later, when Anita Hill claimed that she'd been sexually harassed by Supreme Court nominee (and now Justice) Clarence Thomas, his candidacy was saved after he claimed he was the victim of a "high-tech lynching of an uppity black man." African-American groups split over Thomas, but the race card scared enough senators to win him the nomination by four votes.

If he is confirmed, Estrada will be the first Latino judge on the D.C. Circuit and only the ninth Hispanic federal appeals judge in the country. His ethnicity and his slim written record make him a perfect candidate for what's become a favorite Republican strategy: nominating conservative minorities or women with inscrutable records.

The White House counsel's office, run by Alberto Gonzales, who was Bush's counsel when he was governor of Texas, plays a big role in screening nominees. Gonzales isn't necessarily a hard-liner; some conservatives have privately expressed concern over a concurring opinion he wrote as a judge on the Texas Supreme Court to allow a 17-year-old to have an abortion without notifying her parents. But the vetting of judges is also done by Associate Counsel Brett Kavanaugh, a protégé of former independent counsel Kenneth Starr. The Democrats fear that Kavanaugh wants to remake the judiciary in his former boss's far-right image.

The Administration took tighter control of the nomination process by breaking with the American Bar Association. Since 1952, the ABA's Standing Committee on Federal Judiciary had rated the qualifications of candidates for Democratic and Republican administrations before nominees' names were released to the public. The White House stopped relying on the ABA's ratings, claiming that the committee was biased against Republicans (see "Sidelined," below).

According to some who have worked there, the White House counsel's office doesn't run candidates through an ideological litmus test. "We'd ask questions like what makes a good judge," said Timothy Flanigan, former assistant counsel. "But we would never ask what someone's view is regarding abortion."

But if no one asks about Roe v. Wade, it's because they don't need to. There are other exchanges that, decoded from constitutional law-speak, fix a candidate's place on the ideological spectrum. "You can ask, 'Do you follow what the Constitution says or what Congress says?' " said C. Boyden Gray, counsel to George H. W. Bush and an informal adviser to the current administration. " 'Do you see the role of the courts as expanding government or as legislative?' " A candidate who says he follows the Constitution rather than Congress signals skepticism about lawmakers' power to enact new civil rights laws—a strongly contested issue in the federal courts. And one who says that the courts' role shouldn't be legislative signals disapproval of the liberal activism often attributed to the Warren Court of the 1960s.

Estrada, presumably, knew the code. He went through the standard series of interviews before being nominated in May 2001.

SHORTLY AFTER ESTRADA'S NOMINATION, the AFJ and PFAW began researching his record. Outside interests have periodically influenced nominations since 1916, when business groups campaigned against Louis Brandeis, a nominee of Woodrow Wilson to the Supreme Court, claiming that he was soft on organized labor. In the mid-1980's, after Reagan nominated a run of conservative candidates, the AFJ and PFAW started delving into nominees' records on issues like civil rights and labor law. The groups get money from big liberal donors, foundations, and, in the case of the AFJ, member organizations like the Sierra Club. They've become increasingly sophisticated in the 20 years since.

The AFJ now prepares a report on every controversial appeals court nominee. Over the years, Hill staffers have come to depend on the reports. "Often, it's the groups that get the ball rolling," one former Democratic staffer said. "When they dredge up something juicy, they make some noise and then we have to respond."

But in trying to rouse their political base, the interest groups—as well as the politicians they seek to influence—face two problems: Their central rationale for opposing nominees like Estrada is too abstract to resonate with most voters. It is also too ideological to be an acceptable standard of judgment to many senators.

At the heart of the matter are the recent Supreme Court decisions involving federalism, or the limits on Congress's power to pass laws that constrain state governments. An important example is the 2000 case United States v. Morrison, in which the justices said Congress didn't have the power to give victims of gender-based crimes, like sexual assault, a means to sue their attackers in federal court. For conservatives, decisions like Morrison represent a long-awaited reversal of the rights-expanding rulings of the Warren court, and a return to protecting the prerogatives of the states. For progressives, they're a sign that Congress's authority to protect civil rights is in jeopardy.

But the fight over federalism makes for lousy sound bites. And it's inherently about a battle between left and right. If they have to get ideological, most Democratic senators would rather base their vote on an easily digestible fact that resonates with their core supporters. D. Brooks Smith, Bush's nominee to the Third Circuit, got slammed for failing to resign his membership at an all-male sports club. Charles Pickering, nominated to the Fifth Circuit, was targeted for asking prosecutors not to push for a five-year sentence for a man convicted of burning a cross at the home of an interracial couple.

The AFJ and PFAW were bothered by several of the cases Estrada had argued in private practice before the Supreme Court. In one of them, he argued on behalf of antiloitering statutes directed at gangs, which the NAACP and the ACLU oppose for giving the police too much discretion. But the most troubling thing about him was also the least concrete—the Washington whispers about his rigid conservatism. "We have a network of several hundred lawyers and in Estrada's case our informal inquiries raised significant concerns over whether he would twist the law to suit his own purposes," said Elliot Mincberg, the legal director of PFAW.

An early warning came from Paul Bender, one of Estrada's supervisors at the S.G.'s office. He told The Washington Post that Estrada was "too much of an ideologue to be an appeals court judge." But other Democrats who knew Estrada felt differently. In September 2001, Seth Waxman, a Clinton S.G. and Bender's boss (and a member of the corporate board of this magazine), wrote a letter to the Judiciary Committee disagreeing with Bender's accusations. "In no way did I ever discern that the recommendations Mr. Estrada made or the views he propounded were colored in any way by his personal views—or indeed that they reflected anything other than the long-term interests of the United States," he wrote.

But the liberal groups weren't persuaded. In May 2002, then-Judiciary Committee chairman Patrick Leahy, with the support of the groups, asked the Justice Department to release the memos that Estrada had written to brief his superiors about his cases while in the S.G.'s office. They hoped to find something that would prove the nominee to be, in tone and substance, the intemperate ideologue they believed him.

It was a fairly desperate move. Much of Estrada's work involved criminal law, and opposing Estrada for being tough on crime wasn't a stance that the Democrats felt they could get much traction from. Still, the White House counsel's office repeatedly refused the Democrats' request. Releasing the memos would compromise the ability of the S.G.'s office to defend the legal interests of the United States, the White House said. A June 2002 letter written by Waxman and signed by all six living former S.G.s, three of them Democrats, seconded that position. An "unbridled, open exchange of ideas" can't take place "if attorneys have reason to fear that their private recommendations" are "vulnerable to public disclosure," Waxman wrote.

But Leahy dismissed such concerns, pointing to the rare occasions when Justice Department memos had previously been released, including as part of the consideration of Bork's nomination. It was awkward to ignore illustrious Democrats like former S.G. Archibald Cox. But the Democratic senators didn't have much choice if they wanted to take down Estrada. If the memos didn't prove toxic, the Democrats figured, the refusal of the Administration to release them might.

THE JUDICIARY COMMITTEE held Estrada's confirmation hearing last September, when the Democrats controlled the Senate. In response to senators' questions, Estrada refused to give his views on abortion, affirmative action, and the death penalty. He argued that to speak out would be inappropriate because these issues could come before him on the bench. He particularly irritated Schumer by refusing to name three Supreme Court cases from the last 40 years with which he disagreed.

At the end of the hearing, Schumer forcefully reiterated the Democrats' demands. "This hearing has raised more questions than you have answered," he said darkly to Estrada.

Yet the truth was that both Democrats and Republicans had a very good idea who Estrada was—a conservative lawyer who would most likely interpret the Constitution as the Bush Administration hoped he would. Still, the Republicans felt they had to pretend that they supported Estrada not because he shared their conservative ideology, but because of his qualifications. And the Democrats felt they had to pretend that they needed the memos. Without them, Schumer said at the hearing, Estrada was a "tabula rosa." "Rasa," Estrada corrected before he could stop himself.

It's fitting that the person whose nomination to the Supreme Court launched the confirmation-battle era is the one calling for an end to the charade. "I wish it were a more honest debate," Bork said of the fight over Estrada. He thinks both sides need to lay out their differing approaches to constitutional interpretation. "If the president made a coherent statement that judges should interpret the law the way the founding fathers meant and the Democrats said it should be kept up to date . . . I'd wish to see it."

AFTER THE HEARING IN SEPTEMBER, the Democrats refused to send Estrada's nomination to the Senate floor. But following the November 2002 election, when the Democrats lost control of the Senate and the Judiciary Committee, Hatch regained the committee's chair—and changed its rules.

As a courtesy, the Judiciary Committee has long given additional weight in the approval process to the votes of the nominees' home-state senators (even if they aren't on the committee), recorded on slips of blue paper. In 1995, Hatch began enforcing a rule that no nomination would be voted on without two positive blue slips. He used the rule to slow down some Clinton appointments, including a three-year delay for Helene White's nomination to the Sixth Circuit. Now, with the Democrats in a position to use the blue slips for delay, Hatch announced that the committee would begin to act with only one blue slip in favor of a nominee.

Next, Hatch broke with the tradition of considering only one controversial nominee at a time by holding hearings for three nominees to appeals courts, John Roberts for the D.C. Circuit and Deborah Cook and Jeffrey Sutton for the Sixth Circuit. To slow down Cook and Roberts, the Democrats tried to invoke Rule IV of the Senate's procedures, which permits the minority party to filibuster during a committee hearing. But Senator Hatch declared this action invalid and pressed on.

Hatch's tactics irritated some of the moderate Democrats on the Judiciary Committee who had previously refused to adopt Schumer's "ideology matters" standard. The day of the triple hearing, Senator Joseph Biden, who had followed a policy of setting aside ideology in deciding whether to vote for appeals court nominees, said publicly that he might change his stance. The next day, the Judiciary Committee took its first vote on a judicial nominee in the new Congress. The committee split 10 to 9 along party lines in favor of sending Estrada's nomination to the floor. The AFJ and PFAW had been promoting a filibuster since the election. Now, along with Schumer and Leahy, they began to lobby moderate Democrats like Biden and California's Dianne Feinstein.

At a meeting with Tom Daschle, the Senate minority leader, and Reid, the minority whip, the Democrats on the Judiciary Committee discussed their frustration over Estrada's unwillingness to answer questions and the White House's refusal to release his memos. Daschle and Reid argued that they and the Democrats on the committee should canvass the party for support for a filibuster. Feinstein, who sometimes votes with the Republicans on nominations, wasn't convinced. But she agreed that the idea of a filibuster should be considered by the whole Democratic caucus, which includes all the party's senators.

Filibusters include any attempt to jam up the Senate with lengthy debate or endless procedural motions. The maneuver is politically dicey. In contrast to Jimmy Stewart's heroic filibuster in Mr. Smith Goes to Washington, delays of that sort today tend to expose their supporters to charges of mindless obstructionism. Historically the only successful filibuster of a judicial nominee occurred in 1968, when Lyndon Johnson nominated Justice Abe Fortas to replace Earl Warren as chief justice. Concerned about Fortas's advisory role to the White House, Republicans and Southern Democrats prevented his backers from getting the 60 votes needed to invoke cloture, the tactic that cuts off debate after a set time period.

At a weekly caucus of the Democrats this February, Daschle capitalized on his colleagues' frustration with Hatch's tactics. Rather than focusing on Estrada's ideology, he pitched the filibuster as an opportunity to confront the White House. Daschle warned his fellow senators that if Estrada were confirmed, his success would become proof that the Administration's strong-arm tactics worked. Senator John Breaux, a moderate from Louisiana, stepped in to object. Pointing out that Estrada has a reputation as a distinguished Hispanic lawyer, he asked whether too much was being made of his nomination. Breaux's objection prompted some unlikely voices to challenge his view. Senators Maria Cantwell of Washington State and Barbara Boxer of California said they were tired of being pushed around by the White House. The caucus should have some self-respect and fight, they urged.

More heads began to nod when Senator Richard Durbin of Illinois added that the problem was bigger than Estrada or even future judicial nominations. If the caucus didn't take a stand, he argued, the Administration would roll over them in other contests as well, like cabinet nominations. At the end of the meeting, Daschle stood up and quoted Benjamin Franklin's famous line, "We must all hang together or most assuredly we will all hang separately."

The Democrats voted to filibuster. Only four of them, Senators Ben Nelson, Bill Nelson, Zell Miller, and John Breaux, would eventually voice their support for Estrada.

THE FILIBUSTER, WHICH BEGAN THE FIRST WEEK OF FEBRUARY, provided many petty and ludicrous moments. Reid and Leahy challenged Hatch's characterization of Estrada as editor of the Harvard Law Review by pointing out that he was really one of 70 editors. Senator James Inhofe, the Republican of Oklahoma, gave part of his address in Spanish, signing off to his colleagues, with south-of-the-border etiquette, "Gracias, mis amigos." Senator Hatch declared that he felt he himself was Hispanic.

By early May, the Republicans had tried and failed to invoke cloture five times, and they started talking about eliminating the filibuster. The Democrats clearly don't want to do that. They think the filibuster made them look good with the liberal interest groups and united them behind an issue. But with the possible exception of Biden, it hasn't really built support for Schumer's position that ideology alone warrants opposing a nominee. Conservatives like Hatch and Boyden Gray continue to maintain that ideology is an inappropriate measure of judicial qualifications, and moderate Democrats aren't sure they're wrong. In the case of Estrada, they preferred to stick to the comfortable argument that the Administration had failed to respect Senate procedure.

But other nominations could flush the prominence of ideology into the open. The Democrats are filibustering Priscilla Owen, who was defeated when Bush first picked her for the Fifth Circuit but was brought back for a second chance after the Republicans regained control of the Senate. Owen is being attacked for having an anti-abortion record. The big test of how much ideology now matters, though, will come with the next nominee to the Supreme Court.


Sidelined

ONE MORNING LAST WINTER, AT THE AMERICAN BAR ASSOCIATION'S OFFICES around the corner from the White House, Carol Dinkins declined to discuss the process for nominating federal judges. Dinkins knows a thing or two about the subject: She chairs the ABA's Standing Committee on Federal Judiciary, the 15-member panel that evaluates the qualifications of judicial nominees. But by keeping mum, she was trying to show that she and her committee are above the fray.

Members of both parties have suggested otherwise. Just a few days before Dinkins demurred, Democratic minority whip Harry Reid had called the ABA a "bad organization" and attacked it for having a Republican bias. Two years earlier, the Bush White House labeled the ABA anti-Republican and essentially cut it out of the selection process. "We don't talk about that," Dinkins said when asked about these attacks. "The committee does its work; they concentrate on being as careful and thorough as they can be. They're not part of the political process." What the ABA claims to do—consider a candidate based on his or her written record and the testimony of colleagues—is what trial judges are expected to do when they hear a case. But as both parties' doubts have grown about whether nominees will set aside their ideological views when they reach the bench, so too have the parties begun to doubt the ABA's ability to assess candidates without bias. This has left the organization to defend not only itself but also the view that law can be separated from politics.

The ABA began evaluating nominees in the late 1940s. In 1952, the White House assigned it the special role of evaluating candidates before the president signed off on their nominations. From the beginning, the Standing Committee claimed to focus exclusively on professional qualifications, which they divided into three categories: integrity, professional competence, and judicial temperament. Although presidents occasionally ignored a low ABA rating and nominated a candidate anyway, they eliminated many more candidates because of unfavorable ABA reports.

Then in 1987, the Standing Committee lost the trust of conservatives for giving Robert Bork a less-than-unanimous "qualified" rating. "Four out of five well-informed conservatives will mention Bork as souring them on the ABA," said Todd Gaziano, Director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation.

Nine years later the conservative Federalist Society began publishing ABA Watch, a newsletter that aims to spark debate over the proper role of the ABA—specifically on whether there is a strong enough firewall between the Standing Committee and the rest of the organization. The following year, Senator Orrin Hatch said the ABA had become a political body, and in 2001 the Bush White House decided to restrict the ABA to vetting nominees after their names had been released by the administration. "Under the banner of judicial temperament, [the ABA] says they take into account a nominee's commitment to equal justice under the law," said Leonard Leo, director of ABA Watch. "This standard has provided an escape hatch if members want to take ideology into consideration."

Now Democrats and Republicans have reversed roles. During debate over Miguel Estrada, who received the top ABA rating, Hatch called the ABA rating the "gold standard" for nominees. Minority Whip Reid criticized the ABA for selecting Fred Fielding, formerly Reagan's counsel, for the Standing Committee. Nan Aron, president of the liberal interest group the Alliance for Justice, points out that Dinkins is a former Reagan official. She thinks the ABA has gotten soft on Republican nominees. "The ABA's role is much less meaningful given their high ratings of exceptionally problematic candidates," she said, citing the Bush nominees Charles Pickering and D. Brooks Smith.

The ABA cites the criticism from both sides as evidence that its committee is unbiased. But the attacks have relegated the ABA to the sidelines of judicial nomination battles. The embattled Standing Committee is forced to defend an ideal—that judges and those who assess their candidacies aren't influenced by their own ideologies—that most politicians have either publicly or privately ceased to believe. In an empty conference room, Dinkins expressed that endangered faith. "I believe we can find candidates who are free from bias," she said. "I do because the legal system is built on that." —Katherine Marsh


Katherine Marsh, a writer living in Washington, D.C., last wrote for Legal Affairs about "Choose Life" license plates.

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