Most Americans have never heard of Miguel Estrada, nor should they. He is someone who in normal times would clear the hurdles of confirmation without stirring much controversy. A 41-year-old Honduran immigrant and American success story, his credentials are top notch: Harvard Law Review, Supreme Court clerkship, service in President Clinton’s Justice Department, partner in the law firm that represented George W. Bush in the 2000 vote recount.
Bush nominated Estrada 16 months ago for an appellate judgeship, a stepping stone to the Supreme Court. Democrats stalled the nomination when they controlled the Senate. Now they’ve set the stage for a filibuster that could paralyze the Senate at a critical time.
The standoff is about more than Estrada. He’s not as bad as Democrats say, nor as stellar as Republicans claim. This is a surrogate war over the first nominee to the Supreme Court and a reflection of a very toxic political environment. Minority Leader Tom Daschle has managed to keep all but three of his Democrats in line, displaying a newfound discipline Democrats will need to confront Bush. Republicans need nine Democrats to flesh out their 51-seat majority for the 60 votes required to break a filibuster. The stakes are high for Majority Leader Bill Frist, who needs to demonstrate that he will not bow to Democratic pressure. Frist shrank from calling the Democrats’ bluff when it meant canceling last week’s recess, and it’s not clear whether he’ll take the fight to the brink next week.
Going to the mat against Estrada is risky for Democrats. He doesn’t have obvious political baggage, and Republicans are portraying Democratic opposition as anti-Hispanic. The fact that Estrada is Hispanic did give Democrats pause, but with Republicans touting a conservative California judge who is African-American and a woman as a potential Supreme Court nominee, Democrats can’t be choosy. “If we play dead for an Hispanic, how are we going to touch an African-American woman?” asks a Democratic strategist.
Democrats are anticipating that Bush will make an “immaculate selection” for his first high court nominee, meaning he will name someone with a murky record on hot-button social issues, who, once confirmed, will be revealed as a far-right jurist. Clarence Thomas, who famously said he had never discussed the abortion issue and is a staunchly anti-abortion jurist, is the model.
Estrada is the test case for the stealth nominee Democrats expect. He has little in the way of writings and has refused to release memos that might shed light on his thinking. In Senate hearings, he stonewalled most questions about his views, asserting that he would look at each case with an open mind.
Democrats are sending the message that they will not accept a Supreme Court nominee who refuses to share his thinking on a range of hot-button issues.
The 1973 Roe v. Wade ruling that made abortion legal tops the list, but affirmative action, civil rights and church-state issues are also important.
Seven of the nine justices on the Supreme Court are Republican appointees, and Reagan-Bush and now Bush II appointees dominate the appellate courts, codifying the country’s shift to the right. “Democrats feel we’re at a juncture, that the courts are at a tipping point, and they’ve got to resist,” says a Senate Republican.
Judges sometimes don’t turn out as expected. Democrats benefited from another stealth nominee for the Supreme Court, David Souter, whose hermitlike existence shed little light on his views of social issues. Justice Souter, appointed to the bench by former president Bush, turned out to be a staunch defender of abortion rights and a solid vote on the progressive side of most issues. A Ford appointee, John Paul Stevens, is the most liberal member of the court. “Sometimes it’s better what you don’t know than what you do know in these fights,” muses the Senate Republican.
Democrats haven’t uncovered anything incriminating about Estrada, but they have anecdotal evidence that he is far more extreme in his views than he acknowledges. A superconfident, outgoing, hotshot type, Estrada has shared his views around the water cooler everywhere he’s worked, but his various confidantes are not going to risk their futures by ratting on a guy who’s a favorite of President Bush. Before Congress recessed for Presidents Day, Democrats worried that Bush would make Estrada a recess appointment, which would allow him to serve for a year without have to face confirmation.
“Maybe I’m just being paranoid, but they like to stick it to us,” says a Senate Democrat. “He could spend the year proving he’s a moderate.”
Confronted with that scenario, a White House aide laughed. “There’s no reason to do that,” he said. “We have the upper hand.” Win or lose the filibuster fight, Republicans can blame the Democrats for obstructing a qualified Hispanic nominee. With luck, Republicans think Estrada could turn out to be a sleeper issue just like the Homeland Security Department was in last year’s Senate elections when Democrats blocked passage over a minor labor issue. A lot of Democrats were upset over the party’s unwillingness to take a stand in the November elections. Now that the party has taken a stand, it will have to live with the consequences. The ending could be as bleak as “West Side Story.”
