Unless something entirely unforeseen happens, confirmation hearings for Supreme Court nominee Sonia Sotomayor will be a lovefest for the Democrats who run the Senate Judiciary Committee. There will be much talk about Sotomayor's historic opportunity to become the first Hispanic on the Court, about her inspiring background, and about the sterling qualifications she would bring to the job. Sotomayor will have the majority party strongly on her side, and odds are things will end happily for her.
For some Republicans, however, it will be hard to avoid thinking back a few years, to a confirmation hearing that didn't end happily at all. In 2001, President George W. Bush nominated former Justice Department lawyer Miguel Estrada to a seat on the federal courts of appeals. In that instance, as today, the nominee was was a Hispanic with a compelling story and impressive qualifications. And some of the very people who are today praising Sotomayor spent their time devising extraordinary measures to kill Estrada's chances.
Born in Honduras, Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.
Estrada's nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.
In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. "They also identified Miguel Estrada as especially dangerous," the staffer added, "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."
It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.
Durbin and his colleagues did as they were instructed. But they had nothing with which to kill the nomination no outrageous statement by Estrada, no ethical lapse, no nothing. What to do?
They brainstormed. Estrada had once worked in the Justice Department's Office of Solicitor General, right? (Appointed under the first President Bush, Estrada stayed to serve several years under Clinton.) That office decides which cases the government will pursue in the Supreme Court, right? And that process involves confidential legal memoranda, right? Well, why don't we suggest that there might be something damaging in those memos we have no idea whether there is or not and demand that they be made public?
Durbin and his colleagues knew the Bush Justice Department would insist the internal legal memos remain confidential, as they always had been. It wasn't just the Bush Administration that thought releasing the documents was a terrible idea; all seven living former Solicitors General, Republican and Democrat, wrote a letter to Judiciary Committee chairman Patrick Leahy begging him to back off.
But the Democrats didn't back off. They had a new, very serious question to ask: What is Miguel Estrada hiding?
The answer was nothing, of course. But the strategy worked. Democrats stonewalled Estrada's nomination, and, after losing control of the Senate in 2002, they began an unprecedented round of filibusters to block an entire slate of Bush appeals-courts nominees, Estrada among them. The confirmation process ground to a halt. More than two years after his nomination was announced, Estrada, tired of what appeared to be an endless runaround, withdrew his name from consideration. Instead of being on the federal bench, he is now in private practice in Washington.
And that was how Democrats treated the last high-level Hispanic court nominee. Think about that when you watch their lovefest with Sonia Sotomayor.