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Sunday, Nov 8, 2009
Bush judicial nominee Miguel Estrada is beloved by Ann Coulter and the right. But with no paper trail about his views, opponents will have a tough time rejecting him in the Senate.
Oct 4, 2002 | Liberal activists consider Miguel Estrada, who President Bush has nominated for the D.C. Circuit Court of Appeals, to be a right-wing extremist. Some say Bush's nominee to the nation's second-highest court is as conservative as Charles Pickering and Priscilla Owen, two Bush appeals court nominees rejected by the Democrat-controlled Senate Judiciary Committee.
The problem is that, despite holding hearings last Thursday, Estrada's critics can't prove it. He may well be the reactionary some claim, or he may not. Certainly he's left no writing to prove either case. Instead, most of the damning evidence his opponents can muster lies in the vague realm of reputation. He is, after all, a man who is thanked in the acknowledgements of Ann Coulter's slanderous book "Slander." But while Estrada and Coulter are both members of the conservative Federalist Society, and Coulter has defended his nomination, no other association between them has been found. And dubious accolades aren't quite grounds for rejection.
So Democrats are in the unhappy position of trying to find other reasons to defeat Estrada's nomination. They'll need unanimity among the Judiciary Committee's 10 Democrats to vote him down, which will be tough. There's nothing obvious to disqualify Estrada -- like Charles Pickering's record on race and voting rights, or Owen's history of anti-abortion judicial activism. At this point, the Democrats' best chance at keeping Estrada off the federal bench is to refuse to vote on him altogether. But according to Michael Gerhardt, a professor at William and Mary School of Law and author of "The Federal Appointments Process," "The fact that they held the hearing makes it likelier that they'll take a vote."
Elliot Mincberg, vice president of the D.C. civil liberties advocacy group People for the American Way, concedes that some of the group's wariness toward Estrada comes simply from the enthusiasm with which he's regarded by conservatives.
"One of the things it's based on is the chatter among right-wing activists who are constantly talking about how they believe that Estrada will be very far to the right on a range of different issues," he says. There's also concern, Mincberg says, based "on discussions we've had with people who have known him -- [discussions] that they are not willing to do for the record."
Although Paul Bender, Estrada's former boss in Clinton's Justice Department, calls him a "right-wing ideologue," most of the other information about Estrada's views comes secondhand, from people who've worked with him and don't want to go on the record. In a Sept. 19 article in the Nation, two lawyers accused him of weeding out liberal law clerks while doing interviews for Supreme Court Justice Anthony Kennedy, but both remain anonymous.
Because he never worked as a judge or law professor, Estrada's stands on controversial issues have to be inferred from his clients, his work on Bush's behalf during the Florida recounts and the groups that support him. The Judiciary Committee has tried to obtain memos he wrote while he was a lawyer in the solicitor general's office during the 1990s, but it's highly unlikely that the Bush administration is going to release them. The Republicans seem to have found the perfect stealth conservative.
"[Democrats] have got less to shoot at," says Gerhardt. "[Estrada] has not been known to take controversial stands. One of the challenges in the Estrada confirmation proceeding, if one's disposed to resist his confirmation, is to find some substantial basis on which to do that. There's less of a paper trail."
So groups that oppose him appear to be grasping. In a letter to the Judiciary Committee, People for the American Way notes, "As a lawyer in private practice, Mr. Estrada has expended significant time and effort in seeking to defend so-called anti-loitering statutes and ordinances, which have been demonstrated to disproportionately harm African-Americans and Latinos."
Similarly, Nan Aron, president of the Alliance for Justice, a coalition of liberal groups, says vaguely that "there's evidence to suggest that he would not be fair and impartial on issues regarding civil and women's rights," but she admits there's no red flag.
