Back in the fall of 2001, liberals considered Miguel Estrada particularly dangerous. Nominated for a lifetime appointment to the second-highest court in the land, Estrada was viewed as young, smart and conservative, and Republicans seemed to be “grooming him for a Supreme Court appointment,” according to a Democratic aide.
That’s why Democrats helped defeat Estrada’s bid for the U.S. Court of Appeals for the D.C. Circuit, helping lead a historic filibuster of the nomination.
Now, 15 years later, with the latest judicial confirmation battle focused on the nomination of Judge Merrick Garland to the Supreme Court, Estrada finds himself largely on the same side as Democrats such as Sen. Richard J. Durbin (Ill.).
Rather than supporting the Republican blockade against Garland, Estrada has joined a small but growing, influential bloc of legal conservatives who support his confirmation or are calling for hearings and a vote, sometimes defending the judge from right-wing attacks.
These conservatives often share a common bond beyond legal ideology. Many faced grueling confirmation battles of their own. Some eventually got their appointments after a contested Senate nomination process; others did not.
“Maybe it is a plea for the process to be more sensible and less partisan,” Durbin said in a recent interview, reflecting on his early days as a member of the Senate Judiciary Committee waging a fierce fight to block President George W. Bush’s nominees.
Estrada and other conservatives have been careful not to completely oppose how Senate Majority Leader Mitch McConnell (R-Ky.) is handling the Garland nomination. The GOP leader has declared that presidents should not make such consequential lifetime appointments in their final year in office.
It doesn’t take much reading between the lines to realize the sentiment from Estrada and his allies.
Days after Justice Antonin Scalia died, Estrada co-authored an op-ed in The Washington Post that skewered Republicans and Democrats for their handling of the confirmation process.
“Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity,” Estrada wrote in a piece with former Washington Post editorial writer Benjamin Wittes.
Last week, in an interview with NPR, Estrada defended Garland’s handling of a gun rights case after which the judge faced criticism from conservative groups such as the National Rifle Association.
Estrada declined to be interviewed for this piece, saying he was done talking about the process.
At an American Enterprise Institute event last week, Judge Brett Kavanaugh, who serves with Garland on the D.C. circuit court, called Garland “supremely qualified” for the Supreme Court. Careful to avoid telling the Senate how to act, Kavanaugh, a Bush appointee, also suggested the Senate eventually adopt a new confirmation process to assure timely votes.
Peter Keisler, whose nomination to the D.C. circuit court was blocked by Democrats late in the Bush administration, supports Garland’s outright confirmation based on his qualifications, not his own experience.
Then there’s Kenneth Starr, Kavanaugh’s former boss as the independent counsel who led the impeachment investigation of President Bill Clinton. Now president of Baylor University, Starr called Garland “a brilliant jurist” who is “superbly qualified” for the Supreme Court.
As a group, these conservative legal minds were the tip of the Republican spear in the Bush White House’s bid to transform the federal judiciary.
Today, their views are being ignored by the same Senate Republicans who fought for their confirmation.
“It doesn’t really make any difference — they don’t get to vote,” said Sen. John Cornyn (R-Tex.). “So, I respect their views, but it’s not going to change our decision.”
Cornyn, a former Texas Supreme Court justice, said support for Garland is probably just a sense of collegiality toward the chief judge of the circuit court.
Of course, Estrada never did join Garland on that court, nor did Keisler, so their sense of collegiality toward the nominee comes from arguing cases before him — and, to some degree, their own nomination experiences.
Just 39 when he was nominated, Estrada had been raised in the Honduras and immigrated to the United States when he was 17; he graduated from Columbia University and went on to Harvard Law, where he was Law Review editor.
By his mid-30s, Estrada was seen by many leading Republicans as a history-making jurist — the first Latino member of the Supreme Court. Instead, his nomination to the D.C. Circuit faced strong opposition from Democrats. Republican staffers inappropriately accessed thousands of Democratic emails and memos back then, leaking them to the press and laying bare the rationale for blocking Estrada.
“He has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment,” a Durbin staffer wrote in a November 2001 email, summing up the opposition from liberal groups.
After seven failed attempts to break the Democratic filibuster, Estrada withdrew from consideration in late 2003.
Kavanaugh won his confirmation fight, but it took three years and only after a bipartisan rank-and-file deal cleared many nominations.
Keisler, a top Justice Department official who briefly served as acting attorney general, had the misfortune of getting nominated just before Democrats won control of the Senate. They had no intention of allowing the staunch conservative on the influential court and never acted on Keisler’s nomination.
Asked about how Democrats behaved back then, Durbin sounded almost as if he were about to apologize, then cut himself off.
“It’s hard to go back in history and figure out what started us down this path, but we have clearly reached a break point, where a presidential nominee for the Supreme Court cannot even get a hearing,” he said.