Bush Nominee Ends Confirmation Battle

Miguel A. Estrada, a Honduran-born lawyer selected by President Bush to be a judge on a powerful U.S. appellate court, on Thursday gave up his two-year quest to win Senate confirmation in the face of unshakable Democratic opposition to a nomination laden with partisan, ethnic and constitutional overtones.

Bush reluctantly withdrew the nomination to the U.S. Court of Appeals for the District of Columbia Circuit after Estrada told him he wanted to move on with his legal career and family life.

In an angry statement released by the White House, the president said Estrada had received “disgraceful treatment” from Democrats who blocked a confirmation vote. He called it “an unfortunate chapter in the Senate’s history.”

Democrats and liberal activists, who portrayed the Washington lawyer as an extreme conservative unwilling to answer basic questions about his judicial philosophy, quietly claimed a significant victory.

But Republican leaders and conservative activists loudly protested a stinging defeat. They contended that Estrada, a veteran of Republican and Democratic administrations who has argued 15 cases before the Supreme Court, was highly qualified for the District of Columbia appellate court. Many experts describe that court, which hears cases involving the federal government that have nationwide impact, as second only to the Supreme Court in influence.

Yet unknown is how the controversy over the nomination and withdrawal will affect the allegiances of Latino voters targeted by Bush and his Democratic challengers in the 2004 election. Many Latino groups fervently opposed the nomination; others backed it. But surveys earlier this year found that most Latinos seemed unaware of the dispute.

Republicans charged that Democrats wanted to stop the president from elevating a man who had the potential to become the first Latino on the U.S. Supreme Court. Some have described the District of Columbia appellate bench as a springboard to a seat on the nation’s highest court; three of the current justices took that route.

Democrats “did not oppose Estrada because he was Hispanic,” said C. Boyden Gray, a leading advocate for Bush’s judicial nominees. “They opposed him because he was President Bush’s Hispanic.”

Democrats, who have supported other Latinos nominated by Bush to the federal bench, denied any ethnic bias.

They noted that since Bush took office, they have approved 145 of his judicial nominees. Fifty nominations are pending.

But they said they would stand firm against nominees who they believe stray from the political mainstream. The nominations of Alabama Atty. Gen. Bill Pryor and Texas Supreme Court Justice Priscilla R. Owen to the federal appellate bench are now stalled on the Senate floor by Democratic protests. Democrats are threatening the same treatment for Los Angeles Superior Court Judge Carolyn B. Kuhl, chosen two years ago for the U.S. 9th Circuit Court of Appeals, based in San Francisco.

Estrada’s withdrawal demonstrated the power of a Senate minority to stop action with a filibuster. Through that device, 41 senators in the 100-member chamber can indefinitely delay a final vote on a bill or nomination. By all accounts, Estrada had majority support in the Senate but lacked the supermajority of 60 votes needed to puncture the Democratic blockade and force a confirmation vote.

In seven tests from March to July, Estrada never got more than 55 votes of support. All 51 Republicans backed him, joined by Democrats John B. Breaux of Louisiana, Zell Miller of Georgia, Ben Nelson of Nebraska and Bill Nelson of Florida. The other 44 Democrats and an independent opposed him.

It marked one of the few times in Senate history that a filibuster has blocked a judicial nomination. In 1968, Supreme Court Justice Abe Fortas, nominated to become chief justice, withdrew after his backers failed to break a GOP filibuster.

Republicans dispute whether the Fortas case -- and subsequent filibusters that flamed out -- set a precedent. They said that Estrada’s withdrawal marked the first time that a filibuster had killed a federal district or appellate court nomination, and noted that the development undermined the Senate’s prescribed role in the Constitution of giving the president “advice and consent” on judicial appointments.

“We have descended to a new and low level here,” said Sen. Mitch McConnell (R-Ky.), the assistant majority leader.

Said Senate Majority Leader Bill Frist (R-Tenn.): “The saga of Miguel Estrada is a tale of rank and unbridled Democrat partisanship, and the American people, sadly, are the losers.”

Sens. Charles E. Schumer (D-N.Y.) and Edward M. Kennedy (D-Mass.), members of the Senate Judiciary Committee, said the episode served notice that Democrats would not relent in their efforts to maintain ideological balance in federal courts.

“It’s a victory for the Constitution and the country,” Schumer said.

Added Kennedy: “We have no intention of rolling over.”

For Estrada, Thursday’s developments ended an odyssey that began on May 9, 2001, when he became one of the new president’s first picks for the appellate courts.

Estrada, now 41, was depicted as a rising legal star with an inspiring personal story as an immigrant and naturalized citizen. He graduated from Harvard Law School, clerked for Supreme Court Justice Anthony M. Kennedy and worked for the Justice Department in former President Bush’s administration as an assistant U.S. attorney and a lawyer in the solicitor general’s office. He continued there under President Clinton; his performance led Clinton’s last solicitor general, Seth P. Waxman, to praise him during the confirmation battle.

Leaving government in 1997, Estrada joined the Washington office of Gibson, Dunn & Crutcher, a Los Angeles-based firm where he is now a partner.

Estrada’s nomination came under fire in 2001 and 2002 from Senate Democrats -- then in the majority -- who accused him of ducking questions about his judicial philosophy. Because he did not have extensive published opinions through which his views could be determined, Democrats insisted that the administration turn over memorandums Estrada had written while in the solicitor general’s office. The White House refused, contending that would compromise internal legal deliberations.

When Republicans took over the Senate after the November 2002 elections, they pushed for quick action on Estrada, but never succeeded. Another Bush choice for the District of Columbia appellate court, John Roberts, who was nominated on the same day as Estrada, won confirmation in May, leading Republicans to accuse Democrats of a double standard.

In a letter to Bush on Thursday, Estrada wrote: “I believe that the time has come to return my full attention to the practice of law, and to regain the ability to make long-term plans for my family.”

“At some time in the future, I may be called again to serve my country in some capacity,” he said he hoped.

Some Latino groups opposed Estrada’s nomination, citing what they called a weak civil rights record. So did Latino congressional Democrats who met with him after his nomination.

One of them, Rep. Joe Baca (D-San Bernardino), said Thursday: “Estrada was not a qualified individual. All of us Hispanics want to make sure when a candidate comes up that he or she is qualified and is not being used as window-dressers. This guy had no relationship at all to the Hispanic community.”

But Estrada had support from other Latinos, who praised his bid to break an ethnic ceiling on the District of Columbia appellate court. Republican lawmakers of Cuban descent on Thursday fiercely denounced the filibuster. “This is certainly a sad day for all Latinos,” said Rep. Ileana Ros-Lehtinen (R-Fla.). “It’s a sad day for anyone who wants to realize the American dream.”

“This is discrimination,” she added in Spanish.

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Nominations on hold

President Bush’s judicial nominations being held up by Senate Democrats:

* U.S. District Judge Charles W. Pickering Sr. of Mississippi: Candidate for the U.S. 5th Circuit Court of Appeals in New Orleans. He was the first Bush nominee blocked by Senate Democrats when they were in control of the Senate. Democrats criticized Pickering for his decision to seek a lighter sentence for a convicted cross-burner. After Democrats blocked him in the Senate Judiciary Committee, Bush renominated him, but the committee has not reconsidered his nomination.

* Texas Supreme Court Justice Priscilla R. Owen: Candidate for the U.S. 5th Circuit Court of Appeals in New Orleans. She was also blocked by Democrats in committee when they were in control of the Senate after complaints that she is antiabortion and biased in favor of business. The president renominated her this year and the nomination moved out of committee, but Republicans three times were unable to get the 60 votes to force a vote on the Senate floor to confirm her nomination.

* California Superior Court Judge Carolyn B. Kuhl: Candidate for the U.S. 9th Circuit Court of Appeals in San Francisco. She was opposed by home-state Democratic Sens. Dianne Feinstein and Barbara Boxer after complaints about her past work at the Justice Department against legalized abortion and in support of Bob Jones University, which had banned interracial dating. She was approved on a party-line vote by the GOP-controlled Senate Judiciary Committee but has not received a vote on the Senate floor.

* Alabama Atty. Gen. Bill Pryor: Candidate for the U.S. 11th Circuit Court of Appeals in Atlanta. Democrats complained that Republicans rushed Pryor’s confirmation vote before they could finish an investigation into his fund-raising activities for a GOP attorneys general group. Pryor also is an ardent opponent of abortion and has criticized the Supreme Court’s Roe vs. Wade decision. The GOP was not able to get the 60 votes needed to force a vote on Pryor.

Source: Associated Press

Los Angeles Times