Hispanic judicial nominee: Low profile, high stakes

Democrats filibuster the conservative's confirmation, hinting at possible row over next Supreme Court vacancy.

Forget about Iraq, terror alerts, and President Bush's proposed $674 billion tax cut. The real war in Washington centers on a conservative Hispanic attorney nominated to a top federal judgeship - a battle royale that both sides agree foreshadows an even larger row over the next vacancy on the Supreme Court.

The Democrats are prepared to fight to the end, resuming their week-long filibuster when the Senate reconvenes on Monday. In the process, the Democratic Party and its liberal interest-group backers have embarked on a risky gambit.

The battle has also exposed fault lines within the Hispanic community reminiscent of fallout among African-Americans over the 1991 confirmation fight of Supreme Court Justice Clarence Thomas, a conservative African American.

Miguel Estrada, a Honduran-born attorney here, has the kind of American-dream story that would seem to make him a shoo-in for confirmation: immigrant to the US at age 17, graduate of Harvard Law School and a law review editor, clerk for Supreme Court Justice Anthony Kennedy, and now a partner in a law firm.

To Democrats, Mr. Estrada's sin is that he is a conservative who won't discuss his judicial philosophy. If he is confirmed as a lifetime member of the DC Circuit Court of Appeals, one step below the US Supreme Court, many Democrats fear he will push that court further to the right and be poised for nomination to the Supreme Court.

If Estrada wins confirmation, "this will evaporate from anyone's memory in a few weeks," says David Garrow, a historian at Emory Law School in Atlanta. "But if the Democrats defeat him, boy are they handing Bush a campaign issue to use in the Hispanic community."

Weighing minority interests

While the black vote is overwhelmingly Democratic, the Latino vote is more up for grabs. Hispanics are now the nation's largest minority, and both parties have been angling furiously for Latino support. Hispanic interest groups are divided on the Estrada nomination, with some arguing that as a judge he will not defend the civil rights gains of minorities and others arguing that top US courts need more Hispanic members.

Judicial confirmations have become a premier political battleground in Washington - going back, in fact, throughout the 20th century, but intensifying since Democrats defeated the Supreme Court nomination of Robert Bork. Under Clinton, Republicans routinely stalled judicial nominations; under Bush, Democrats have turned the tables.

And since the Democrats lost control of the Senate in the last election, they feel the filibuster is their last political tool. The Republicans don't have the 60 votes needed to halt debate.

With their bare 51-seat majority in the Senate, "the Republicans believe they can do anything they want on their agenda," says Ralph Neas, head of People for the American way, a liberal interest group that is planning an anti-Estrada media campaign. "It's the appropriate time to draw a line in the sand."

A few Democrats, such as Sen. John Breaux of Louisiana, oppose their party's tactics on the Estrada issue.

"The country is on Orange Alert and people are stockpiling water and duct tape, and the Senate is talking about a filibuster on a guy with the top rating of the ABA," Mr. Breaux said recently, referring to the American Bar Association.

But Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, expresses his party's dominant view: "I was not elected to be a rubber stamp."

GOP strategy: plead the Fifth

What's curious from the Republican side is the strategy of having Estrada reveal as little as possible during his confirmation hearings about his judicial philosophy. Democrats have requested files from his work as an assistant to the US solicitor general from 1992 to 1997, but the Republicans have refused, arguing that to comply would inhibit open discussion in future Justice Department work.

Estrada appears to be in a no-win situation. Most Democrats already believe he is an ultraconservative, in the mold of Supreme Court Justice Antonin Scalia. If Estrada's papers were released, Democrats would likely find points to buttress their view.

Tit for tat?

What's really happening, says a Republican Senate aide, is that the Democrats are "feeding their base" - getting hard-core party members revved up for the 2004 election. But what both parties have achieved is the further poisoning of the political atmosphere in Washington at a time of grave national concern, with possible war on Iraq looming and a war on terrorism keeping the population on edge.

"We're in a vicious cycle of payback," says Michael Gerhardt, a law professor at William and Mary College. "People in the Senate have long memories - both members and staff."

When the Founding Fathers came up with the provision for Senate's "advise and consent" on the president's judicial nominees, the goal was to ensure some balance in the process, says Mr. Gerhardt. But how that would play out has been a matter of custom. For now, it couldn't be more partisan.

Staff writer Gail Russell Chaddock contributed to this story.

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