Saturday, November 15, 2003

Democrats on the Senate Judiciary Committee have worked in close concert with outside special-interest groups to defeat President Bush’s judicial nominees, according to internal Democratic staff memos.

In one memo to Sen. Richard J. Durbin of Illinois obtained by The Washington Times, Washington lawyer Miguel A. Estrada is singled out as “especially dangerous” because “he is Latino.” Mr. Estrada, born in Honduras, withdrew his nomination to the U.S. Court of Appeals for the D.C. Circuit in September after being filibustered for eight months.

In another memo, staffers for Sen. Edward M. Kennedy of Massachusetts recommend that a Bush nominee to the 6th Circuit U.S. Court of Appeals, Tennessee Judge Julia S. Gibbons, be stalled until after that appellate court decided on the two major affirmative action cases dealing with the University of Michigan and its law school.

“The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it,” the staffers wrote.

The 14 internal documents obtained by The Times — which did not come from a Senate staffer — appear to support some of the more serious accusations made by Republicans during the 39 hours of Senate debate over Democratic filibusters that ended yesterday morning.

Democrats on the Judiciary Committee have long proclaimed their independence from outside interest groups and angrily deny accusations that they considered the race of Mr. Bush’s nominees before blocking them.

After two nights of nonstop debate, Democrats voted yesterday to conduct two new filibusters against judicial nominees and voted to maintain another. In total, Democrats are now filibustering five nominees.

The two new filibusters are against California Judge Carolyn Kuhl, nominated to the 9th Circuit U.S. Court of Appeals, and California Supreme Court Justice Janice Rogers Brown, nominated to the U.S. Appeals Court for the D.C. Circuit. Republicans — and conservative black leaders — have accused Democrats of blocking Justice Brown because she is black but doesn’t subscribe to the Democratic ideologies that many blacks do.

Similarly, Republicans have accused Democrats of blocking Mr. Estrada because of his ethnicity. They say Democrats fear allowing Mr. Bush to get credit among the fast-growing population of Hispanic voters for advancing a Hispanic nominee such as Mr. Estrada to a high-ranking judicial position.

But Democrats have repeatedly insisted they opposed Mr. Estrada’s nomination because they did not know enough about him and his legal work.

In the Nov. 7, 2001, memo, the Durbin staffer was recounting a meeting his boss had missed with Mr. Kennedy and “representatives of various civil rights groups.”

“[Y]esterday’s meeting focused on identifying the most controversial and/or vulnerable judicial nominees, and a strategy for targeting them,” the staffer wrote about the groups present. “They also identified Miguel Estrada (D.C. Circuit) as especially 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.”

Portions of the memo first appeared in yesterday’s Wall Street Journal editorial pages.

Sen. John Cornyn, Texas Republican, said, “Describing Miguel Estrada as ‘especially dangerous, because … he is Latino,’ as suggested in these memos, makes my skin crawl.”

Durbin spokesman Joe Shoemaker said the memo has been taken out of context.

“That’s a list of what the groups saw as dangerous positives,” Mr. Shoemaker said. “In their opinion, Miguel Estrada was especially dangerous from a political standpoint for Democrats because they wouldn’t want to vote against him for those very reasons.”

The memos also shed light on the efforts to make sure the University of Michigan affirmative action cases were heard favorably.

In an April 17, 2002, memo, staffers relayed to Mr. Kennedy that Elaine Jones of the National Association for the Advancement of Colored People’s Legal Defense Fund had called to urge that a Bush nominee to the 6th Circuit U.S. Court of Appeals be stalled until after the case was decided.

“Elaine would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit,” said the memo. “Rumors have been circulating that the case will be decided in the next few weeks.”

Later in that same memo, staffers explained that they “are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case. We are also aware that the 6th Circuit is in dire need of additional judges. Nevertheless we recommend that Gibbons be scheduled for a later hearing: the Michigan case is important, and there is little damage that we can foresee in moving Clifton first,” a reference to Richard Clifton, “an uncontroversial nominee to the 9th Circuit.”

In the end, staffers recommended that Mr. Kennedy should, “Let Elaine know that we will ask” then Judiciary Committee Chairman Patrick J. Leahy of Vermont “to schedule Gibbons after Clifton. Given the dearth of uncontroversial nominees, however, the Committee will probably have to hold a hearing for Gibbons on May 9th even if there’s yet no decision in the Michigan case.”

Mr. Clifton was confirmed July 18, 2002. Judge Gibbons was confirmed on July 29, 2002, less than two months after the 6th Circuit U.S. Court of Appeals decided in a 5-4 decision to uphold the University of Michigan Law School’s affirmative action program.

The Supreme Court later upheld the panel’s decision regarding the law school’s admissions program, but struck down the university’s undergraduate admissions policy.

Kennedy spokesman David Smith defended the memo, saying: “The senator welcomes advice from the groups he works with. They are constantly providing input from their perspective and he appreciates that. He evaluates that and makes his own decision.”

Mr. Smith also said the leaked documents raised serious questions about Republican tactics.

“There’s been this rash of stolen Democratic memos by Republicans recently,” he said, citing the memo written by a staffer to Sen. John D. Rockefeller IV, West Virginia Democrat, that strategized to make political hay out of the Iraq war.

“These are thefts of Democratic memos,” Mr. Smith said.

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