POLITICS MAY 3, 2010
Miguel Estrada seemed to be a shoo-in for the federal bench. Nominated by George W. Bush to the D.C. Circuit Court of Appeals in 2001 when he was just 39, Estrada was born in Honduras. He arrived in the United States as a teenager speaking little English and went on to graduate from Harvard Law School and clerk for Supreme Court Justice Anthony Kennedy. He then worked at Wachtell, Lipton, Rosen & Katz, arguably the most prestigious law firm in the nation, and, later, as an Assistant U.S. Attorney for the Southern District of New York, itself the most prestigious such office in the country. He later became assistant to the U.S. Solicitor General, arguing several cases before the Supreme Court, and established himself as a prominent member of the Federalist Society, the nation’s most influential conservative legal-interest group.
But Estrada never made it to the bench. The same qualities that had earned him a nomination—his youth, political leanings, and minority background—perversely worked against him: Fearing that Estrada would sit atop a list of possible Supreme Court picks once he became a judge, Senate Democrats waged a harsh two-year campaign against him. In 2003, Estrada removed himself from consideration and returned to private law practice.
Today, another judicial nomination is following a route strikingly similar to Estrada’s. Goodwin Liu, whom President Obama has nominated for a seat on the Ninth Circuit Court of Appeals, is 39, the son of Taiwanese immigrants, a Rhodes Scholar, and one of his generation’s sharpest legal minds. Yet he has already drawn heavy fire from conservatives, largely because they see him as a potential Supreme Court nominee later in Obama’s presidency. “This is the revenge of Miguel’s supporters,” Tom Goldstein, a prominent Washington attorney, blogger, and TNR contributor, says of Liu’s nomination. “Every indication is that it will go into a black box never to be seen again.”
Democrats opposed Estrada because they feared him. In addition to being young (which most Republican appointees on the federal courts at the time were not), a minority, and a conservative, Estrada was headed for the D.C. Circuit, which is the top feeder for the Supreme Court: Four of the current justices came directly from there. A 2001 staff memo to Senator Dick Durbin, who sat on the Judiciary Committee, called Estrada politically “dangerous” because he “has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” And, in 2003, the late Senator Ted Kennedy told his colleagues, “The White House is almost telling us that they plan to nominate him to the Supreme Court. We can’t repeat the mistake we made with Clarence Thomas.”
When Democrats united against Estrada, they accused him of being a “stealth nominee” because, having never been a judge, he had a scant written record of opinion. His opponents demanded that the Bush administration provide the Judiciary Committee with memos Estrada had penned while working for the Solicitor General, and, when the administration refused—an action backed up by a bipartisan group of former Solicitors General, who said it would constitute a breach of legal confidentiality—the Democrats said Estrada and his backers were refusing to give evidence of the nominee’s ideology. Finally, when the GOP tried to bring Estrada’s nomination to the floor for a vote, they were stymied by an historic Democratic filibuster—the first-ever to defeat a court of appeals nominee. Republican House Majority Leader Tom Delay of Texas called the Democrats’ procedural behavior a “political hate crime.” But Democrats breathed a sigh of relief, knowing that Estrada was no longer on the fast-track to the Supreme Court.
Goodwin Liu is, in many ways, Estrada’s liberal foil. He clerked for Supreme Court Justice Ruth Bader Ginsburg and has served as the chair of the board of directors of the American Constitution Society, the nation’s foremost liberal legal interest group. Currently, he is an associate dean of the Boalt Hall School of Law at the University of California at Berkeley. He publicly opposed the Supreme Court nominations of John Roberts and Samuel Alito, even testifying against Alito during his confirmation hearings, and he has staked out decidedly liberal positions on abortion rights, gay marriage, affirmative action, and other hot-button issues.
Most importantly, like Estrada, Liu is seen as a probable Supreme Court pick. If confirmed, Liu, in addition to being liberal and from a minority background, would be one of the only Democratic judges in the nation young enough to be attractive for the High Court. (Excluding Obama’s nominees confirmed so far, the average age of Democratic appointees on the courts of appeals is 65 years old—and no one is younger than 56.) As Michael Gerhardt of the University of North Carolina School of Law recently told The Washington Post, his confirmation process is “an initial referendum on Goodwin Liu as a Supreme Court nominee.”
Fully aware of Liu’s prospects, Republicans have launched a campaign against him. Numerous conservatives have blasted him for lacking judicial experience, while Senator Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, has called Liu “beyond the mainstream.” On “Meet the Press,” Sessions recently added, “We’ll not confirm somebody like that.” What’s more, the GOP membership of the Judiciary Committee issued a public letter prior to Liu’s April 16 confirmation hearing, saying the nominee may have “knowingly attempted to hide his most controversial work from the Committee.”
This objection echoes the “stealth nominee” charge hurled at Estrada. Yet, unlike Estrada, Liu has a host of public writings, and, in completing the Judiciary Committee’s questionnaires, he included much of his past work. But Republicans found some of his past writings, speeches, and interviews on the Internet that Liu had not specifically provided the committee—a not uncommon error among federal judicial nominees, given the reams of information they are required to provide, but one perfectly suited for the GOP’s opposition. At Liu’s hearing, Texas Senator John Cornyn said the nominee had shown “contempt” for the Senate by not providing fuller answers to his questionnaire. Other senators attacked Liu’s writings directly; Arizona Senator Jon Kyl called his 2006 testimony against Alito “vicious, emotionally and racially charged.”
Whether Liu’s nomination makes it to the Senate floor will depend in part on how hard Obama is willing to go to bat for him. But, even then, Liu could be headed for a dead end. In what would be a raw display of political hypocrisy by Republicans, he could face the same filibuster the GOP decried when it was used on Miguel Estrada. Like Estrada, Liu could soon be another failed judicial nominee.
A failure to confirm both Estrada and Liu, two nominees with watertight academic and legal credentials, would signal that placing young, qualified nominees with clear political and legal predilections on the federal appeals courts is virtually impossible. Thanks to the ratcheting up of the judicial wars in the Senate, new legal talent could continue to go to waste, as up-and-comers refuse to participate in the contentious confirmation process. Or, knowing that they must remain as uncontroversial as possible in their early careers, they may keep tight-lipped about important issues, writing or saying little of legal import. This would mark a serious setback for the quality and influence of the judiciary.
Indeed, the current battle on Capitol Hill over Goodwin Liu is a pivotal moment for the U.S. courts. “This nomination will be very telling,” says Carl Tobias, a professor at the University of Richmond School of Law. “If [Democrats] can’t win this one, the process may be hopeless.”
Mark Greenbaum is a writer and attorney in Washington, DC.