NEW YORK, April 15 (UPI) -- Despite dire predictions to the contrary, Senate Democrats might actually be benefiting from their effort to stop the confirmation of President George W. Bush's nomination of Miguel Estrada to a seat on the U.S. Court of Appeals for the D.C. Circuit.
This life-tenured appointment has enormous ramifications. Federal judges decide law in key areas including the environment, civil and constitutional rights and health care.
The filibuster is being led by Senate Minority Leader Tom Daschle, D-S.D., Judiciary Committee members Patrick Leahy, D-Vt., and Charles Schumer, D-N.Y., and has survived four attempts to kill it by invoking cloture and despite the effectiveness of the GOP spin machine.
Politically, the opposition has demonstrated to the party faithful that Democrats have a backbone and indeed stand for something.
For all the bluster of Senate Judiciary Chairman Orrin Hatch, R-Utah, and others about Estrada's outstanding qualifications for the job because he graduated from Harvard Law School, served on the Law Review and because he is Hispanic, there are serious issues to consider.
He has never served as a judge, and has therefore, never issued a written opinion on any case. Estrada's public written record is miniscule. He hasn't authored a single important legal publication or book, and his last legal publication was while in law school in the 1980s.
He has been described as one of the principal architects of Bush's legal strategy following the 2000 election and is an active member of the right-wing Federalist Society.
Many leading Latino rights organizations, oppose the nomination. They are joined in this by a veritable who's who of established civil rights and civil liberties organizations.
The Republicans say his opponents have erected unfair obstacles to his confirmation solely because they don't approve of Estrada's ideology. But it is not as simple as that.
His supporters would have us believe Estrada was grilled on the so-called litmus-test issues only. In reality, Democrats on the Judiciary Committee asked specific questions beyond his opinion on rulings such as Roe v. Wade.
They raised questions about his judicial philosophy and approach, asking him to explain his views on such legal matters as the first amendment and the right to privacy.
Many of their questions were questions asked of, and answered by, other Bush judicial nominees. On the day of Estrada's hearing, senators asked five other Bush-nominated district court nominees the same kinds of broad questions. Each nominee provided answers.
But during his Judiciary Committee hearing, Estrada conveyed the impression that he could not recall discussing any Supreme Court rulings -- including the most controversial -- while working in the office of the Solicitor General. He gave highly evasive answers to senators seeking to pin him down on whether he agreed or not with key rulings.
The hearing transcript reads like a sophisticated case of cat-and-mouse, with Estrada appearing remarkably well-coached in the best way to answer without giving information.
If we are to accept his testimony on its face, he demonstrated an inordinate lack of intellectual curiosity within his professional field. At best, his responses were disingenuous. At worst, he may have lied to the committee.
A reasonable person might think his evasiveness does not argue for his confirmation. The stonewalling left senators with little information about his views. Without a basis on which to determine his fitness for the post, it should be little surprise that he was labeled a "stealth" nominee, ethnic origin and law school matriculation aside.
Filibustering Democrats argue that without Estrada's cooperation or any kind of paper trail, they are unable to fulfill their Constitutional "advise and consent" function.
After the third cloture attempt, Leahy said in a statement that he found "the excesses that the Republican majority and this White House are willing to indulge to override the constitutional division of power over appointments and longstanding Senate practices and history" to be "unprecedented."
In words that have come back to haunt him, Hatch said in September 2000: "The Senate's power of Advise and Consent, after all, is not a rubber stamp." The GOP has repeatedly complained that the Estrada-penned documents the Democrats have requested, including those pertaining to settled cases that are six to 10 years old, are beyond the pale of a legitimate request.
The administration has refused to furnish the documents on the grounds that their release could "irreparably harm the government."
But precedent is against them.
There are 20 years of comparable requests, dating back to the Reagan administration, where Senators asked for and received papers during the confirmation hearings of numerous judicial candidates.
Full cooperation from the executive branch was the case in the nominations of both Chief Justice Rehnquist and former Solicitor General Robert Bork, an especially significant point in the Estrada case because Bork played several roles in the Solicitor General's office -- including the top post -- while Estrada was only an underling.
In both situations, the Senate asked for correspondence dealing with appeal memo requests on which the nominee had worked. In Bork's case, there was complete administration compliance. Senators received a great deal more potentially sensitive material than they even requested.
In the Estrada case, there's been only stonewalling from the Bush White House, all part of a deliberate strategy of "non-information," designed to make it difficult for Senators to vote against the nominee.
There is tremendous concern that Estrada -- and other recent Bush nominees -- are much more interested in being activist judges, despite their claims otherwise.
A judicial activist seeks to change settled law, regardless of whether the change expands or contracts the Constitution's reach. In Estrada's case, the concern is not judicial activism per se but the potential for the overturning of established law.
Historically recognized law has never been easily overturned, even in the face of injustice.
The 13th and 14th Amendments were passed in the 1860s to give blacks full citizenship and equality. Yet it took almost another 100 years for the current interpretation to take hold, as the Supreme Court held in its 1954 decision, Brown v. Board of Education of Topeka, Kan.
Conservatives routinely object to the decisions that, beginning with the New Deal, validated the passage of important laws governing the federal labor force, Social Security, race relations, and the Voting Rights Act -- to name but a few.
Now that they are in charge, Republicans hope to make their own sweeping changes to the federal landscape, changing the laws that have benefited women, minorities, the disabled and the poor especially.
There is an abject hypocrisy that is at work here.
Perhaps the most blatantly false and offensive is the accusation that Estrada opponents are anti-Latino, even racist. Some Republicans have gone so far as to accuse even the Congressional Hispanic Caucus of these sentiments.
In March, the National Council of La Raza, a Hispanic civil rights group that supports the Estrada nomination, issued a press release condemning the slandering of Caucus members who were called "tyrannical" "racist" and "anti-Latino" by Estrada supporters.
When Republicans led the Senate while Bill Clinton was president, they held up their share of nominees -- including one Latino nomination for a period of four years -- something conveniently overlooked every time the complaint is raised that Estrada's nomination languished for two years.
That doesn't necessarily make the situation right, but if the point is going to be raised, then at least be accurate about it.
In May 2001, the Salon.com Web site described how Senate Republicans used "myriad bureaucratic tools to block a staggering and unprecedented 167 of Clinton's judicial nominees -- tools that Hatch is now trying to throw into the incinerator."
Specifically, more than 50 nominees never got hearings, including 20 circuit court nominees, and several never got a vote. The number of circuit court vacancies actually doubled during the period Hatch first held the Judiciary Committee gavel.
The trench warfare and politicization over judicial nominees was ratcheted up by the GOP during Clinton's second term, not over the past year, as they now claim. The entire judicial appointment process was effectively stopped during the last two years of Clinton's tenure by quashing judiciary committee hearings and votes.
There is also precedent in the use of the filibuster to delay or stop nominations, including that of Abe Fortas to be Chief Justice of the United States Supreme Court and Judge Marsha Berzon to the 9th Circuit.
The numbers do not match Hatch's rhetoric. While the Democrats led the Senate, more than 110 Bush-nominated judges were confirmed, including at least seven Latinos.
Further, the Republicans made it clear just a few years ago they considered the matter of judicial vacancies to be a non-issue. In 2000, Hatch dismissed the Democrats' concern in a press release, saying "there is and has been no judicial vacancy crisis."
However, now that the Bush administration is trying to pack the courts in what a Washington Post editorial called "conveyor-belt confirmations," Republicans suddenly contend there is an urgent need to seat judges.
There is virtually no existing social, labor or environmental policy that the Bush administration is not currently attempting to undermine in some way. It is beyond doubt that its strategic assault will be aided by its crop of judicial nominees.
This is not simply a matter of Estrada's political views.
It is the issue of whether a nominee who has demonstrated a pattern of extreme partisanship in his professional and personal career can turn around and suddenly be expected to be fair and impartial in legal decision making.
Estrada's former supervisor and deputy solicitor general during the Clinton administration, Paul Bender, called the nominee an "ideologue" so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way" -- a comment that has fueled the Democrats' opposition.
To all those pundits and newspaper editorialists who warn that the filibuster will backfire on the Democrats because it leaves a negative public perception, the reality is that it could actually help the party. Their tenacity has demonstrated a commitment to doing what they believe to be right, and as a result is re-energizing a disillusioned and demoralized party faithful.
(Jillian Jonas is a freelance journalist living and working in New York City.)
