Miguel Estrada -- Next stop Supreme Court

Posted: Sep 11, 2003 12:00 AM

WASHINGTON, D.C. -- Well, there goes one of my favorite jokes -- to wit, insisting that Miguel Estrada is actually Japanese.

After waiting two and a half years for the Senate's Democrats to allow a vote on his nomination to the U.S. Court of Appeals for the District of Columbia, Estrada has decided to become rich. Rather than hear such paragons of balderdash as the Hon. Charles E. Schumer calumniate him as politically extreme, Estrada withdrew his name from the Senate's butcher block.

Now, he will continue his extremely lucrative law practice at one of Washington's most prestigious law firms. For over two years, he has wondered if he would be able to afford a lovely country retreat in rural Virginia, which he would like to refurbish. Now he knows that he can afford the place and enjoy his weekends planting gardens, reading books and watching the Hon. Schumer slander other Republicans on the weekend talk shows for allowing the president to nominate them for public service.

The Hon. Schumer, having won the support in New York of some of American politics' most exotic single-issue fanatics, now spends his time blocking Republican judicial nominees by calling them extremists. The fact of the matter is that compared to Estrada, the Hon. Schumer is the aberrant one. Estrada, whom I have known for years, holds no views outside the mainstream of American life. He is a perfectly normal American. When a politician comes along and depicts such a normal person as extreme, it is the name-calling politician who is the extremist, not the normal American.

Schumer and his bitter-end Democrats have adopted the novel idea that a judicial nominee's "ideology" disqualifies the nominee, if that ideology is not congenial with Schumer. Actually, if the federal government is to have a working judiciary, ideology does not matter. What does matter is that the nominees have integrity, knowledge of the law and the understanding that judges apply law to cases. They do not make law.

By opposing Republican judicial nominees over the matter of "ideology," the Democrats have politicized the courts. They have also broken the rules hitherto followed in confirming a judicial appointment. Until Schumer adopted his extremist position, a judicial nominee was confirmed or rejected by a simple majority in the Senate. But with the nomination of Estrada (and two remaining judicial nominations), the Democrats commenced a historically unprecedented filibuster. As a consequence, 60 votes in the Senate are necessary to confirm a filibustered nominee because 60 votes are needed to end a filibuster.

Estrada is the first circuit or district judicial nominee ever to be defeated by filibuster. Or put another way, he is the first nominee to be forced to gain the support of 60 senators rather than a majority. He has been investigated and grilled for over two years and nothing of substance was discovered to disqualify his nomination. All that the Democrats could discover is that Estrada has served with distinction in and out of government. He served honorably in the Office of the Solicitor General during the Clinton administration and in the Justice Department as a superb prosecutor. Now he has left public service, and he is making a bundle.

The reason that a man of such normative views as Estrada has been opposed by the Democrats is that they see themselves as the party of the ethnic minorities. Estrada is a Latino. When I claimed he was a Japanese-American, I was just trying to get a little rise out of his Democratic tormentors. That the Republicans would raise him to one of the highest courts in the country proves that Latinos are welcome in the Republican Party, too. They do not have to be beholden to Democrats. Moreover, Estrada is so manifestly qualified for the court that, were he confirmed, he might very well be nominated by the Bush administration to the Supreme Court. That would badly impair the Democrats' claim to be the party of Latinos. Thus the soi-disant party of Latinos comes down hard on a successful Latino.

The Senate Republicans are increasingly angered about the Democrats' obstructionism. They are laying plans to thwart the Democrats' unprincipled filibusters. Some are also considering plans to urge the White House to nominate Estrada again a couple of years down the road, but this time to a higher court, the Supreme Court.

By then, if the Democrats continue to play the role of the bully, there will be even fewer of them in the Senate, and Estrada's Supreme Court nomination will sail through. He will have his house in the country and life-long employment in a job where he can wear a comfortable loose-fitting robe rather than a three-piece suit.