Playing Political Games With Estrada

20 March 2003

By Stentor Danielson

I almost have to feel sorry for Miguel Estrada. Estrada, who was nominated by President Bush for the U.S. Court of Appeals in the District of Columbia (often seen as a stepping-stone to the Supreme Court), has become the focal point of political maneuvering by both Democrats and Republicans in the Senate. For Democrats, Estrada’s confirmation is a chance to shake off the "spineless" image they’ve acquired. For Republicans, he’s a ticket to Hispanic votes.

Judicial nominations have been a prominent worry of Bush’s detractors for years. Conventional wisdom on both the left and the right holds that judges have become increasingly audacious in stretching the meaning of the law to suit partisan principles, and since federal judges are not subject to elections, there has been an increasing focus on judicial confirmations as the battleground for how the law will be interpreted. The possibility that members of the Supreme Court -- currently finely balanced between liberalism and conservatism by Sandra Day O'Connor's swing vote -- could retire on Bush's watch was used to energize voters in 2000. The tactic was especially popular in the pro-choice movement, as the nation's abortion debate hinges on the Roe v. Wade decision.

Estrada isn't headed for the Supreme Court at the moment, so Roe isn't an issue just yet. But he is prominent enough to make a good test case for Democrats’ resistance to judicial nominations they see as too conservative. So Democrats have begun a filibuster to block a vote on Estrada, knowing that Republicans had the support to approve Estrada, but not to break a filibuster (which requires a sixty percent supermajority). So far, the filibuster has weathered three attempts to bring Estrada to a vote.

After last year's midterm election failure, Democrats agreed that what prevented them from hanging on to their slim Senatorial majority or picking up seats in the narrowly Republican House was their lack of a spine. Seeing Bush’s phenomenal popularity after September 11, Congressional Democrats avoided criticism of the President’s policies -- most famously on the authorization to use force against Iraq. The lesson they drew from the ballot box this fall was that Americans don’t much care for a "Republican lite" party, and so Democratic leaders vowed to stand up to Bush.

Judicial confirmations were one area ripe for improvement. In the eighteen months that Democrats controlled the Senate, they confirmed 100 nominees and rejected only two. Knowing that their constituencies were concerned about conservative judicial appointments, the party picked Estrada as a test case. By blocking a nominee who was high-profile and clearly conservative, they could show some spine and send a message to Bush -- we won’t stand for your partisan nominees. While the filibuster's supporters are certainly opposed to Estrada on his own merits, they are also using him as a symbol of the larger issue.

Republicans, meanwhile, are concerned about the fact that the government is now entirely in their hands. If the public is unhappy with how the next two years are run, the blame can easily be laid at the feet of the GOP in Congress and the White House. So they've decided to make what has become the most meaningless accusation in American politics: the Democrats are being obstructionist. "Obstructionist" has lost its meaning because it has been too easily thrown around whenever legislation is voted down. If your party doesn't vote for a bill, count on the other party to claim that you're obstructing Congress and keeping it from accomplishing anything.

In the Estrada case, Republicans argue that the filibuster has prevented the Senate from getting on with its other business (though they somehow found time to pass a ban on partial-birth abortion). Bush has become so frustrated with the fight that he has proposed a law requiring an up-or-down vote on all judicial appointments. This proposal (which is not without merit) is hardly something that would have gotten Republican support a few years ago, when the GOP was using every tactic short of a filibuster (for example, simply refusing to schedule hearings) to avoid a vote on many of Bill Clinton's nominees.

Yet Estrada is more than just another conservative judicial nominee. He’s a Hispanic conservative judicial nominee. Estrada's ethnicity makes him appealing to a party that has had trouble getting support beyond the Anglo white community. Aside from Floridians of Cuban origin, Hispanics consistently vote Democrat -- about 65 percent of them in 2000, even with Bush’s much-vaunted ability to speak Spanish and close friendship with Mexican President Vicente Fox. (Incidentally, Fox has gotten the cold shoulder from Washington over the past few years, and received a number of veiled threats for contemplating a vote against a U.S. invasion of Iraq.) Bush seems to be counting on the Estrada nomination to win him votes among Hispanics.

In addition to complaining of obstructionism, Republicans are playing the race card to provoke Democrats into allowing a vote. After Bob Graham (D.-Fla.) voted to uphold the filibuster a week ago, fellow Floridian Rep. Mark Foley called the vote "a slap in the face to the Hispanic community."

Hispanics are divided on the issue. Some would like to see one of their own on the federal bench, and of course the conservative minority have little reason to oppose Estrada. Others, however, question whether Estrada is really one of their own, as he hails from Honduras while most U.S. Hispanics are of Mexican or Puerto Rican origin. Further, they doubt whether a conservative would really represent their interests, even if he does share their ethnic background. This doubt has been amplified by Estrada's refusal to explain his judicial philosophy to the Senate -- a refusal that has provided Democrats with a justification for blocking the appointment. The split suggests that an act of judicial tokenism is not going to bring many anti-Bush Hispanics into the GOP’s fold.

Given Estrada's refusal to testify and his lack of a history as a judge (his career so far has been as a lawyer), I can't say for certain whether he's a good nominee. But it is clear that simply being Hispanic does not qualify Estrada for a judgeship. Republicans are treading close to hypocrisy in using an argument so similar to the affirmative action that they despise. Pro-affirmative action Democrats are on somewhat more secure ground, as the level of conservative ideology they accuse Estrada of having would outweigh all but the most stringent race preferences.

Then again, principles have tended to be in short supply whenever Congress takes up judicial nominations.

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