Court nominee Estrada withdraws

In Senate battle, Democrats prevail by way of filibuster

By Lyle Denniston, Globe Correspondent, 9/5/2003

WASHINGTON -- Miguel A. Estrada, President Bush's most embattled choice for a federal judgeship, withdrew yesterday after waiting more than two years for the Senate to vote on his nomination.

It was the first time that the Democratic minority has scuttled a Bush nominee to a federal court seat -- a rare defeat for a judicial appointee who had majority support in the Senate. Estrada pulled out after the Senate seven times refused to end a Democratic filibuster.

His withdrawal brought renewed calls for a ban on filibusters against judicial candidates, but activists on both sides say that proposal appears doomed, suggesting that the partisan battles over Bush's conservative judicial nominees will go on.

The end of Estrada's confirmation fight also reinforced the prospect of a partisan standoff if Bush gets a chance to make a nomination to the Supreme Court. Both sides had considered the fight over Estrada a rehearsal for future contention over a Supreme Court vacancy.

Estrada, a 42-year-old born in Honduras and educated at Harvard, was widely seen as a potential nominee to the Supreme Court as its first Hispanic justice. Bush had nominated him to the US Court of Appeals for the District of Columbia.

In a letter to the president, Estrada said that he had decided it was time to "return my full attention to the practice of law, and to regain the ability to make long-term plans for my family."

Bush had taken a strong personal role in the prolonged Senate fight over Estrada, accusing Senate Democrats of being "obstructionist" and vowing to stand behind him until he was confirmed.

In a statement, Bush denounced the "disgraceful treatment" that he said Estrada had received from the 45 senators who had kept the filibuster going.

"The treatment of this fine man is an unfortunate chapter in the Senate's history," Bush said. He added that he understood and respected Estrada's wish to end the fight.

The Senate has approved 140 of Bush's nominees since he came into office in January 2001, but the attention of both Democrats and Republicans has been focused on the three Bush nominees -- Estrada, Judge Priscilla Owen of Texas, and Alabama Attorney General William Pryor -- who have yet to get a vote on the Senate floor. Each probably would have been confirmed if a vote occurred.

Prolonged debate led by Democratic opponents has delayed Senate action on those three and is already getting started on a fourth. Filibusters are likely to occur on four other nominees because Democrats consider them "extreme conservatives."

Estrada became the only one to give up on a judgeship rather than wait for a vote that might never come.

Individuals who know Estrada, as well as several close to the Senate confirmation process, said yesterday that he was ready in March to ask the White House to let him withdraw after it became clear that the filibuster would continue.

At that time, those individuals said, the White House dissuaded Estrada from ending his pursuit of the appellate court seat because presidential aides did not want to yield to the Democratic opposition.

Estrada's nomination has been especially important to the White House because political aides there regarded it as a highly visible declaration of the president's commitment to the nation's Hispanics, an increasingly important voting bloc. The nomination, however, has deeply split leaders of that community, and they have publicly feuded over the issue.

Their disagreement continued yesterday.

The Congressional Hispanic Caucus, which has strongly opposed Estrada for a court seat, said that the nomination was an assault on the constitutional system of checks and balances because he had not been "willing to answer questions about his views." The caucus, however, added, "the system and the Constitution prevailed" with the end of the nomination fight.

Brent Wilkes, national executive director of the League of United Latin American Citizens, a strong supporter of Estrada, said "we're disappointed that this very well-qualified individual with a moderate record was not able to have a full vote in the Senate."

Estrada was nominated by Bush on May 9, 2001, for a seat on the Appeals Court in Washington that often is the threshold to promotion to the Supreme Court. Two of the present justices, Ruth Bader Ginsburg and Antonin Scalia, previously served on that tribunal.

C. Boyden Gray, a Washington lawyer and head of a new group set up to promote Bush's judicial nominees, the Committee for Justice, said: "At root, base politics drove the Democrats' decision to deny the president the chance to someday name the first Hispanic to the Supreme Court. That is what it was all about."

Gray alluded to the likelihood of continuing White House-Senate confrontation over judgeships, saying: "Senate Democrats' disgraceful treatment of this superb nominee will be remembered."

Nan Aron, president of the Alliance for Justice, a liberal advocacy group, and a principal player in the opposition lobby against Bush's most conservative nominees, said: "This is going to be a contentious, tense fall and election year."

Aron said she saw no sign that "the White House has any intention of altering its strategy to pack the courts with extreme ideologues." Democrats, she said, "appear to be united in sending the White House a message that they won't confirm his most extreme nominees."

The Democrats have filibustered Estrada's nomination longer than any other Bush nominee, and the GOP leadership has tried more often than on any other nominee to force that filibuster to a close. Estrada has won a majority of the senators' votes, but not the minimum of 60 needed to end a filibuster.

Senator Edward M. Kennedy, a Massachusetts Democrat who has been a leader of the opposition to Estrada and other Bush nominees, called Estrada's withdrawal a victory that reinforced a shared role for the Senate in judicial appointments.

Kennedy urged the president to change tactics and begin to "work with the Senate and nominate individuals who have the highest qualifications, who can command bipartisan support, and who respect the progress this nation has made in protecting individual rights and freedoms."

Senator Orrin G. Hatch, a Utah Republican who is chairman of the Senate Judiciary Committee, said: "The Senate ought to be ashamed of its unfair treatment of Miguel Estrada." He added that it was time "to stop the nonsense of filibustering judicial nominees and give them the dignity of up or down votes that they deserve."