The Right's Judicial Juggernaut
From 1993 to 1996, Paul Bender was Principal Deputy Solicitor General of the United States and Estrada's direct supervisor in the office of Solicitor General. The two men worked together closely. Bender, a former law clerk to Justice Felix Frankfurter and Learned Hand and currently a professor at Arizona State Law School, was quoted in the Los Angeles Times this past spring as saying that Estrada is so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way.... Miguel is smart and charming, but he is a right-wing ideologue. He has an agenda that's similar to Clarence Thomas'." A year earlier Bender told the Washington Post, "I think [Estrada] lacks judgment and he is too much of an ideologue to be an appeals court judge."
In a telephone interview Bender, a registered Independent, told me, "I am not on any personal crusade against Miguel. But I still hold the same opinion about his lack of qualifications that I gave the Washington Post last year, when he was nominated. Miguel has no experience and extreme conservative views. He did not hide those views from me when I was his supervisor. But I don't want to go beyond that, or make this seem personal."
Perhaps the most damaging evidence against Estrada comes from two lawyers he interviewed for Supreme Court clerkships. Both were unwilling to be identified by name for fear of reprisals. The first told me: "Since I knew Miguel, I went to him to help me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. Miguel told me, 'No way. You're way too liberal.' I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. When I asked him why I was being ruled out without even an interview, Miguel told me his job was to prevent liberal clerks from being hired. He told me he was screening out liberals because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in a case known as Romer v. Evans, which struck down a Colorado statute that discriminated against gays and lesbians."
I also interviewed a young law professor and former Justice Department attorney who told me a very similar story. "I was a clerk for an appeals court judge," the professor told me, "and my judge called Justice Kennedy recommending me for a clerkship with him. Justice Kennedy then called me and said I had made the first cut and would soon be called for an interview. I was then interviewed by Miguel Estrada and another lawyer. Estrada asked most of the questions. He asked me a lot of unfair, ideological questions, a lot about the death penalty, which I told him I thought was immoral. I felt I was being subjected to an ideological litmus test. Estrada was being obnoxious. He was acting like it was his job to weed out liberal influences on Justice Kennedy. I was never called back by anyone."
Attorney General Ashcroft has refused to give the Judiciary Committee any of Estrada's memorandums written while he worked in the SG's office--even though such material was released on Bork and Rehnquist. But one instructive brief has surfaced in United Mine Workers of America v. Bagwell. Estrada wrote an amicus brief arguing that $52 million in contempt fines against the union should stand--despite the fact that they were imposed without allowing the union a jury trial on the facts. The Supreme Court ultimately rejected Estrada's thinking, ruling that the imposition of fines without a jury trial violated the Constitution. Estrada misrepresented the legal precedents to fit his anti-union bias--exactly what Professor Bender says is his disqualifying attribute to be an appellate judge. Like the defeated Pickering and Owen, Estrada seems prone to ignore the text and intent of laws that contradict his closed mind.
The Bush political operation has been working overtime trying to generate at least some token Latino support for Estrada. In June the eighteen-member Hispanic Caucus of the Congress--all Democrats--had a closed meeting with Estrada to which the White House reluctantly agreed. "I asked him a very specific question about affirmative action and minority businesses," says Nydia Velázquez, the five-term Congresswoman from Brooklyn, "and he just would not say anything meaningful about it. And then he was quite insensitive about immigrant rights--and he is an immigrant himself! Estrada has no understanding of the needs and aspirations of the Latino community. He has no history of effort in trying to help other Hispanics." She adds, "I don't think he is going to make a good impression on the Senate. He does not answer questions. And if you ask him again, he becomes abrasive."
Seven-term Congressman José Serrano came away with an even harsher view. "Estrada seems baffled," Serrano told me, "about why we would even ask him questions about justice and empowerment. He wouldn't even acknowledge there has been discrimination against Hispanics in America. He seemed lost, like he had never been involved in any struggle to better the lives of Hispanics. He had no comprehension of Latino history and suffering."
As a result of this performance, Velázquez and Serrano say, the Hispanic Caucus is sending a letter to Senator Leahy opposing Estrada's confirmation. Perhaps even more significant, the Puerto Rican Legal Defense and Education Fund has also voted to formally oppose Estrada's confirmation. The fund's early decision may now influence other Latino civil rights organizations like the Mexican American Legal Defense and Education Fund, the National Council of La Raza and the National Puerto Rican Coalition.