Court Side

The withdrawal of Miguel Estrada's judicial nomination is a setback for the Bush administration in its efforts to cement the far right's hold on the U.S. Court of Appeals for the District of Columbia Circuit. Will this be a temporary setback? That depends in part on whether President Bush -- with the help of Senate Republicans -- is able to push through the nominations of Brett Kavanaugh and Janice Rogers Brown, two other right-wing nominees to the D.C. Circuit who, like Estrada, are extremists unfit for the bench.

Defending the D.C. Circuit from far-right nominees is worth the fight because it is second only to the Supreme Court in prestige and power. It is also a sort of farm team for the high court: Three of the nine sitting Supreme Court justices came from the D.C. Circuit.

Bush nominated Estrada for a reason: Like the Republican officials who once shepherded the career of Clarence Thomas, the White House clearly viewed an appointment to the D.C. Circuit as a stepping stone to the high court for Estrada. (Thomas served a short stint on the D.C. Circuit before George Bush Senior nominated him to the Supreme Court.) Just as Thomas' backers wrongly assumed a decade ago that his race would make it impossible for liberal groups to oppose his nomination, White House officials patronizingly bet that Hispanic groups would fall in line behind Estrada.

But they were wrong. Groups such as the Mexican American Legal Defense and Educational Fund expressed serious concern about Estrada's nomination from the beginning -- and ultimately came out in strong opposition.

Meanwhile, the Senate Judiciary Committee's nine Democrats hardened in their opposition to the nomination following Estrada's hearing before the group in September 2002. One of Estrada's supervisors at the Justice Department, Paul Bender, had said that the nominee was "too much of an ideologue to be an appellate judge." Subsequently, Sen. Patrick Leahy (D-Vt.), then chairman of the committee, asked the administration to make available legal memos that Estrada wrote while at the Justice Department. The administration refused, claiming incorrectly that the request was without precedent -- in fact, the Reagan administration readily turned over similar documents to the Senate during the battle over Robert Bork's nomination in 1987.

Estrada's hearing was an exercise in evasion and stonewalling. The nominee refused senators' requests that he encourage the administration to make his memos available. When asked to name Supreme Court decisions with which he disagreed, he took a page from the Clarence Thomas playbook and replied that he could not form an opinion on a case without reading briefs and hearing oral arguments. But senators have learned from the Thomas experience -- a year after he demurred on Roe v. Wade at his confirmation hearing, he voted to overturn it -- and so they greeted Estrada's professed agnosticism with appropriate doubt. Ultimately, 45 senators recognized that they had to use every available tool to reject a nominee who expected them to take his fitness for the bench on faith.

The White House's handling of Estrada's nomination was a display of raw arrogance. Administration officials expected senators to simply accede to their court-packing strategy. Fortunately, the senators didn't buckle. But rather than being chastened by this experience, Republicans now seem intent on wringing political capital from the episode.

Playing the race card that they have so often denounced in the past, Senate Republicans have attempted to portray the opposition to Estrada as anti-Hispanic. This charade has become comical, with Republicans suggesting that Democrats fought Estrada because of his ethnic background rather than because he refused to cooperate with the Judiciary Committee. I don't believe the American people will fall for it.

Nor will they fall for the ludicrous Republican attempts to portray Democrats as sexist (for their opposition to 5th Circuit nominee Priscilla Owen) or anti-Catholic (for their opposition to 11th Circuit nominee Bill Pryor).

What happened to Estrada suggests that the administration would be wise to steer a new course in judicial nominations -- one of consensus, consultation and moderation. But there are no signs that the administration has learned a lesson. Owen and Pryor remain in contention for circuit court posts, the nominations of Kavanaugh and Brown are pending, and the president has all but guaranteed that there will be more Estradas -- that is, more pawns in a broad strategy to remake the courts in a conservative mold.

Nan Aron is president of the Alliance for Justice.

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