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By E. J. Dionne Jr.
So why are Senate Democrats filibustering President Bush's nomination of Miguel Estrada to one of the nation's most important courts?
Certainly Estrada has lived an admirable life. He came to the United States from Honduras at age 17, graduated from Harvard Law School and clerked for Supreme Court Justice Anthony Kennedy. He was an assistant U.S. attorney, served as an assistant solicitor general under President Clinton and went on to a distinguished law firm.
To say the guy is no slouch is an understatement. But the fight over Estrada's nomination to the U.S. Court of Appeals for the District of Columbia Circuit is not simply about him. It is about a concerted effort to pack our courts with representatives of a single point of view. If Democrats just rolled over on Bush's judicial nominations, they would be guilty of oppositional malpractice.
To understand this battle, you could go back to Richard Nixon's campaign against liberal judges. But let's just look at what happened to Bill Clinton's effort to get two highly qualified nominees onto the D.C. Circuit.
Elena Kagan, who served in the Clinton White House, graduated at the top of her class at Estrada's law school and now teaches there, saw her nomination languish in the Republican Senate for 18 months. Allen Snyder clerked for that well-known left-winger, U.S. Chief Justice William Rehnquist, and was also at the top at Harvard Law School. His nomination languished for 15 months.
If Republicans believe in voting for quality -- their argument for Estrada -- why didn't they confirm Kagan and Snyder? The answer is obvious: We have before us, sadly, a fierce political struggle for control of the courts.
It's not good enough to say that the way out of this politicized process is for Democrats to ignore the past and cave in to the Republicans. To do that would be to reward a determined conservative effort to control the courts for a generation. Stage One involved obstructing Clinton's nominees. Stage Two involves using any means necessary -- including outrageous charges of ethnic bias -- to ram conservative choices through.
The stakes go beyond any single nominee. Do we want courts entirely dominated by one side, or do we want a fair and balanced judiciary?
Consider these statistics, gathered by the Democratic staff of the Senate Judiciary Committee. There are 13 circuits: 11 regional plus the D.C. Circuit and the federal court that handles specialized cases. If all of Clinton's nominees had been approved, the circuits would have been evenly balanced in partisan terms by the time he left office. Six would have had majorities appointed by Democratic presidents, six by Republicans, and one would have been evenly split.
But if Bush succeeds in filling every open seat, some of them vacant because Clinton nominees were blocked, 11 of the 13 circuits will have Republican-appointed majorities. In eight of the 13, Republican nominees would have majorities of 2 to 1 or more. Is that a formula for careful, balanced decision-making?
To push attention away from this fundamental question, Republicans who say they don't want a politicized nominating process -- and who regularly accuse Democrats of "playing the race card" -- are doing all they can to turn the Estrada fight into an ethnic imbroglio.
"If we deny Mr. Estrada the position on the D.C. Circuit, it would be to shut the door on the American dream of Hispanic Americans everywhere," Sen. Chuck Grassley (R-Iowa) said in January. Last year, Republican Sen. Trent Lott of Mississippi said of the Democrats: "They don't want Miguel Estrada because he's Hispanic."
Never mind that eight of the 10 Hispanic appellate judges were appointed by Clinton. And never mind that Republicans had no problem blocking such Hispanic Clinton nominees as Enrique Moreno, Jorge Rangel and Christine Arguello.
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