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Why confirm Estrada? Ask the Democrats

By John Nowacki
web posted April 15, 2002

Several Senators, House members, representatives of Hispanic groups, attorneys and grassroots activists held a rally on April 10 to show their support for the nomination of Miguel Estrada to the U.S. Court of Appeals for the DC Circuit. Mr. Estrada, a prominent Washington attorney, was nominated on May 9, 2001, and though nearly a year has passed, the Democrat leadership of the Senate has chosen to do nothing with his nomination. No Senate vote. No committee vote. No real hint of when he'll even receive a hearing. And no good reason why.

It isn't as if he's not qualified. Mr. Estrada is a widely respected attorney at a well-known DC law firm, who served as an Assistant U.S. Solicitor General from 1992-1997, during both the first Bush and Clinton Administrations. He is also a former Assistant U.S. Attorney for the Southern District of New York, where he served as Deputy Chief of the Appellate Section.

Mr. Estrada has argued fifteen cases dealing with civil and criminal issues before the U.S. Supreme Court, prevailing in ten of them. He has tried ten cases as a prosecutor and argued seven cases before the U.S. Court of Appeals for the Second Circuit. Mr. Estrada clerked for a Carter appointee on the Second Circuit before clerking for Justice Anthony Kennedy on the Supreme Court, and the American Bar Association has rated him "well-qualified" for a seat on the DC Circuit.

And it isn't as if there is a substantive objection to Mr. Estrada's confirmation. A representative of the liberal Alliance for Justice, for example, recently expressed some vague concern about Mr. Estrada's "approach to issues" while admitting that, in truth, "we don't know that much about him." In short, there's no excuse for the Democrats' refusal to act. No excuse, except politics.

Democrats and their allies on the Left have made it clear that they will fight over circuit court nominations in a way previously reserved for Supreme Court nominees. And when they can't cobble together some rationale for opposing a nominee - as they did with Charles Pickering and are attempting to do with Brooks Smith and Priscilla Owens -- they simply stall. And stall. And stall.

The fact that Mr. Estrada is Hispanic is apparently also working against him -- not because Democrats don't want Hispanics on the bench, but because they don't want Republican-appointed Hispanics on the bench.

But apart from all these arguments - Mr. Estrada's qualifications, his stellar résumé, and his excellent reputation - there are other arguments for Senate action on the nomination, arguments put forward by Senate Democrats themselves.

On October 11, 2000, Senator Patrick Leahy, now Chairman of the Judiciary Committee and scheduler of hearings, said: "I have said on the floor, although we are different parties, I have agreed with Governor George Bush, who has said that in the Senate a nominee ought to get a vote, up or down, within 60 days."

Mr. Estrada has been waiting for a hearing and a Senate vote, up or down, for 336 days. And counting.

On July 25, 2000, Mr. Leahy said: "The Senate should get about the business of voting on the confirmation of the scores of judicial nominations that have been delayed without justification for too long . . . That is our constitutional responsibility. It should not be shirked."

On March 7, 2000, Senator Tom Daschle - now the Senate Majority Leader - said: "There is a dire shortage-we have a judicial emergency right now, throughout the country. And it's important for us to respond to that emergency, confirm the many, many judges whose nominations are still languishing either in committee or on the floor."

There were 75 vacancies then. There are 95 vacancies now.

On March 19, 1997, Mr. Leahy said: "But we should also remember that when we just put numbers here, numbers do not tell the whole story. The DC Circuit's docket is by far the most complex and difficult in the Nation."

Four of the twelve seats on the DC Circuit are now vacant.

On that same day, Senator Richard Durbin, a current member of the Judiciary Committee, said: "I submit that this debate is not just about numbers. It is about the administration of justice; the fair, prompt, equitable, and thorough administration of justice is at stake."

Mr. Estrada should be confirmed, and the Senate does indeed have a responsibility to move forward on this nomination, which has been delayed without justification for far too long. If Democrats really believe that judicial vacancies impair the administration of justice, they should give Miguel Estrada a hearing and a vote. They've made the case. Now it's time for them to act.

John Nowacki is the director for Legal Policy at the Free Congress Foundation.

Other related articles: (open in a new window)

  • Dems will shut down judicial confirmations by Thomas L. Jipping (June 18, 2001)
    They can talk about being fair all they want but Thomas Jipping says the Democrats aim to reject as many Bush judicial nominees as possible
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