Fair Courts

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The Power of The Filibuster: Estrada Withdraws After Two Years

On September 4, 2003, Miguel Estrada asked President Bush to withdraw his pending nomination to a federal appeals court in Washington, D.C.

A battle has been raging over Estrada’s nomination for over two years, and the struggle has revealed weaknesses in the judicial nomination process itself. It has also forced a discussion of race and prejudice, since Estrada is an immigrant from Honduras.

Advice, consent, and the filibuster

The U.S. Constitution dictates that federal judges be appointed by the President of the United States with the “advice and consent" of the Senate. A majority of Senators must vote to approve a nomination before a federal court appointment can be made.

Since there is a Republican majority in the Senate right now, most of Bush’s nominations are quickly approved. 140 nominations have gone through since Bush took office. However, the minority party has a way to prevent nominations that they strongly oppose –they can stage an extended debate, or, filibuster.

Both Republicans and Democrats use the filibuster when in the minority. Nevertheless, some claim it to be unfair. Some say the filibuster has altered the judicial nomination process. The Constitution requires a majority of votes only (51 votes), but 60 votes are required to end a filibuster. With a filibuster in place, more than the majority must agree to the nomination.

Democrats claim that filibusters would not be necessary if both parties participated in the nomination process. They say that Republicans should nominate moderate judges that both sides can approve.

Tell me about yourself, Mr. Estrada

Senate Democrats filibustered Estrada’s nomination because they are unsure of where he stands on important issues. He has worked only as a lawyer, not as a judge, so there is no public record of his political opinions.

Rumor has it that Estrada’s legal views are far right of the mainstream. The Senate Judiciary Committee asked for his opinions on various contentious issues, but Estrada refused to answer. He claimed to have no opinion whatsoever on abortion.

So Democrats requested that the administration provide them with some of Estrada’s legal memos, which would help them to better understand Estrada’s legal ideology. The White House did not give up the documents because they are privileged legal information.

Playing the race card

Republicans have accused Democrats of refusing Estrada because of his race. This is unlikely because both parties are trying to recruit voters from the quickly growing Hispanic population. No one is interested in appearing racist to voters of color. Democrats see Estrada as a threat to women’s rights and minority rights. They doubt that he would support reproductive rights or affirmative action.

Some think that Estrada was nominated because of his race. Appointing an Hispanic judge to the D.C. Court of Appeals (the most important court after the Supreme Court) makes a statement – a pro-Hispanic, pro-diversity statement. It is in President Bush’s interest to appeal to Hispanic voters in seeking reelection.

Not all Hispanics were in favor of Miguel Estrada becoming a federal judge. The Congressional Hispanic Caucus opposed the nomination from the beginning. They were concerned by the fact that Estrada refused to answer questions about his views.

Campaign fodder

It is very likely that this issue will come up in the 2004 presidential race. Republicans are likely to accuse Democrats of holding up the judicial nomination process. Democrats are likely to accuse Republicans of refusing to consult them when choosing nominees. At issue is: what is the responsibility of the majority to the minority? Is it winner take all? This is especially contentious since the 2000 election was decided by one vote in the Supreme Court.

To learn more about our court system, visit Fair Courts, one of WomenMatter’s nine life issues. To discuss this topic with other WomenMatter readers, visit our online forum. You can also contact your representatives and let them know what you think.

Posted on: 9/9/2003

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