Democrats Draw Battle Lines Over Bush Court Pick

At first glance, President Bush’s nominee for a midlevel federal court would not look to be highly controversial, especially for Democrats.

Miguel A. Estrada, a 41-year-old native of Honduras, served in the Clinton administration, won praise from some of those he worked with then and would be the first Latino to serve on the U.S. appellate court here.

But for Senate Democrats who are waging an intense fight over Estrada’s nomination, the battle is about nothing less than the ideological control of the federal courts.

Republican appointees already dominate the Supreme Court and most of the 12 U.S. courts of appeals. And the few appellate courts that are closely split are likely to tilt to the right if Bush wins confirmation for half a dozen pending nominees, beginning with Estrada, whom one Democrat terms a “stealth” conservative.

It’s a prospect that alarms the Democratic Party’s liberal core. Last week, these activists cheered as filibustering Democrats brought the Senate to a halt to thwart Estrada’s confirmation.

It was the first filibuster over a judge since outgoing President Lyndon Johnson tried to elevate his longtime friend, Supreme Court Justice Abe Fortas, to the court’s chief justice slot in 1968.

Republican activists said they were appalled by the move.

“For many years, we have had guerrilla warfare on judges, but this is a dramatic escalation. This is unprecedented for a lower-court judge to be subjected to something like this,” said C. Boyden Gray, White House counsel during the administration of former President Bush.

Estrada’s friends said they were mystified by the filibuster.

“It’s strange to see this happen to someone you know,” said lawyer Ted Boutrous, who helped recruit Estrada to the Washington office of the Los Angeles-based law firm Gibson, Dunn & Crutcher in 1997. “Miguel is a terrific person to work with. He loves the law, and when I talk to him about a legal issue, you always get a fresh, intelligent perspective. It’s what you want in a judge. This seems to be a pretext for some other battle.”

His supervisor in the Clinton administration’s Justice Department, then-Solicitor General Seth Waxman, praised Estrada as a “model of professionalism and competence.” And Ron Klain, the top legal advisor to former Vice President Al Gore, described him as “genuinely compassionate. Miguel is a person of outstanding character [and] tremendous intellect.”

But a crucial concern for Senate Democrats is that because Estrada has not been a judge or a law professor, he has virtually no written record of opinions on key legal matters. And during a Judiciary Committee hearing in September, Estrada gave terse, often unrevealing answers to questions posed by the panel’s Democrats. He promised to approach each case with “an open mind.”

“Although we all have views on a number of subjects from A to Z, the first duty of a judge is to put all that aside,” he said.

Such comments reminded some of the words of Clarence Thomas who, during hearings in 1991 on his nomination to the Supreme Court, characterized himself as a blank slate who had “no ideology” to bring to the bench.

Once narrowly confirmed by the Senate, Thomas became an unwavering conservative.

Democrats have not forgotten. Sen. Charles E. Schumer (D-N.Y.) called Estrada a “far-right, stealth nominee” who is “sort of reminiscent of Clarence Thomas.”

Fighting “right-wing judges” makes for a rallying cry on the political left in the same way that efforts to ban the procedure known as partial-birth abortion rally many conservatives.

By blocking Estrada, “the Democratic leadership is giving voice to its massive base of labor, civil rights, women’s rights, disability rights, environmental, gay and lesbian rights groups,” said Eleanor Smeal, president of the Feminist Majority Foundation.

Ralph G. Neas, president of the liberal advocacy group People for the American Way, recently sent out a memo titled: “The Approaching Armageddon on Judicial Nominations.”

The months ahead “could determine the law of the land and the shape of our government for the next several decades,” Neas said. “Rarely if ever in our history has the entire federal judiciary been dominated by the appointees of one political party.”

Only two of the 12 U.S. appeals courts tilt strongly in favor of Democrats: the 9th Circuit Court in California and the 2nd Circuit Court in New York.

Two others are evenly split: the 6th Circuit Court in Cincinnati and the District of Columbia Circuit Court.

Estrada came to New York at 17. He graduated at the top of his class at Columbia College and Harvard Law School and clerked for Justice Anthony M. Kennedy at the Supreme Court.

In May 2001, Bush nominated him in his first batch of 11 selections for the federal bench. Republicans praised him as an outstanding nominee and called his life an American success story.

The American Bar Assn.’s committee that assesses prospective judges rated Estrada unanimously as well-qualified, its highest rating.

But Democrats, who controlled the Senate from mid-2001 through last year, kept his nomination stalled in the Judiciary Committee.

While Estrada’s public record is thin, detractors say that in private he can be acerbic and arrogant. At last year’s hearing, Estrada conceded that he used the word “boneheaded” when a lawyer for the Puerto Rican Legal Defense Fund questioned whether his experience reflected a Latino background.

Estrada said the question was “offensive” and deserved to be labeled “boneheaded.”

In January, with Republicans retaking control of the Senate, new Judiciary Committee Chairman Orrin G. Hatch (R-Utah) moved quickly to confirm four of Bush’s stalled nominees, including Estrada. In the first showdown vote, Estrada won committee approval, 10-9, on a straight party-line vote. But when Republicans brought up his name for final Senate approval, Democrats balked. Under Senate rules, the minority party can exercise a veto, since it takes 60 votes to cut off debate.

Not all Democrats back the filibuster. Sens. John B. Breaux of Louisiana and Zell Miller of Georgia said they question the need for a fight over a few judges.

But most of the Senate’s 48 Democrats said they were willing to fight on the issue.

In launching their filibuster, Democrats said they would not allow a vote on Estrada until the White House released legal memos he wrote during his five years in the solicitor general’s office. Estrada’s tenure there began during the administration of former President Bush and continued into President Clinton’s first term.

Estrada said he was glad to have the files opened, but the decision was not his. White House officials responded that the Democrats had all the information they needed and that releasing such information would set a bad precedent.

When the Senate left town Friday for a week’s recess, the lines had been drawn, and neither side said it was looking to compromise anytime soon.