Miguel Estrada

Miguel Estrada
Born	September 25, 1961 (1961-09-25) (age 50) Tegucigalpa, Honduras
Nationality	United States
Alma mater	Columbia University (B.A.) Harvard Law School (J.D.)
Occupation	Lawyer
Employer	Gibson, Dunn & Crutcher LLP

Miguel Angel Estrada Castañeda (born September 25, 1961) is an attorney who became embroiled in controversy following his 2001 nomination by President George W. Bush to the United States Court of Appeals for the District of Columbia Circuit. Claiming he was a conservative ideologue with no experience as a judge, and unable to block Estrada's nomination in the Senate Judiciary Committee after the Republican Party took control of the Senate in 2002, Senate Democrats used a filibuster to prevent his nomination from being given a final confirmation vote by the full Senate on the Senate floor.

Although a filibuster had been used in 1968 to extend debate regarding the elevation of Associate Justice Abe Fortas to the position of Chief Justice of the United States, the Estrada filibuster was different in several ways. Estrada's was the first filibuster ever to be successfully used against a judicial nominee who had clear support of the majority in the Senate (Fortas only had the support of 45 Senators and ended up resigning his position a year later in disgrace), and the first filibuster of any court of appeals nominee. Additionally, Estrada's was the first filibuster that prevented a judicial nominee from joining a court. Republican Senators opposed establishment of these new precedents, and, after Democrats filibustered several further nominees, the so-called Gang of 14 Senators negotiated an agreement to prevent a recurrence absent "extraordinary circumstances."

Background

Estrada was born in Tegucigalpa, Honduras. After his parents divorced, he immigrated to the United States to join his mother when he was 17, arriving with a limited command of English.

He graduated magna cum laude and Phi Beta Kappa with a bachelor's degree from Columbia in 1983. He received a Juris Doctor (J.D.) degree magna cum laude in 1986 from Harvard Law School, where he was an editor of the Harvard Law Review. After law school, Estrada served as a law clerk to Judge Amalya Lyle Kearse of the U.S. Court of Appeals for the Second Circuit. He then clerked for Justice Anthony M. Kennedy of the U.S. Supreme Court during his first year on the Court in 1988. One of his fellow clerks during that year was Peter Keisler, another controversial conservative nominee to the D.C. Circuit whose nomination was never processed by the Senate Democrats during the 110th Congress.

From 1990 until 1992, Estrada served as Assistant U.S. Attorney and Deputy Chief of the Appellate Section, U.S. Attorney's Office, Southern District of New York. In 1992, he joined the United States Department of Justice as an Assistant to the Solicitor General for the George H. W. Bush Administration where he served with now Chief Justice John G. Roberts. In those capacities, Estrada represented the government in numerous jury trials and in many appeals before the U.S. Court of Appeals for the Second Circuit. Before joining the U.S. Attorney's Office, he practiced law in New York with Wachtell, Lipton, Rosen & Katz.

Estrada was married to Laury Gordon Estrada until her death at age 46 on November 28, 2004. She died of an accidental overdose of alcohol and sleeping pills, having also miscarried during the nomination fight. ^[1]

D.C. Circuit nomination by President George W. Bush

George W. Bush nominated Estrada to a position on the United States Court of Appeals for the D.C. Circuit on May 9, 2001. He received a unanimous "well-qualified" rating from the American Bar Association.

Democratic Senators opposed the nomination, noting Estrada's lack of any prior judicial experience at the local, state, or federal level. Additionally, though a member of The Federalist Society, Estrada had never been an academic, so there was no record of his writing by which the Senate could review his record. He had worked in the Office of the Solicitor General under the senior President George Herbert Walker Bush. He had also been a partner in the same law firm as Ted Olson, working on the legal team that represented the younger Bush in the Bush v. Gore case. Thus he and his record were well-known in conservative circles, and he was even known to be a friend of Ann Coulter who acknowledged him in her book.^[2]

Yet, in his testimony before the Senate Judiciary Committee, he claimed he had never thought about Roe v. Wade even while serving as a Supreme Court clerk at a time when the first Bush Administration had asked the Court to reconsider it.^[3] Also while as Justice Kennedy's clerk, he interviewed potential candidates for the clerkship. In an article published in The Nation magazine Jack Newfield alleged that Estrada had disqualified candidates who were too liberal. When questioned about this by Sen. Charles Schumer at the confirmation hearing, Estrada changed his recollection of the incident during his testimony.^[4] Democratic Senators also objected to the refusal by the Office of the Solicitor General to release samples of Estrada's writings while employed there, although such a release of confidential documents would have been precedent-setting. Minority Leader Tom Daschle was quoted by the Associated Press as saying, "The stumbling block to Miguel Estrada's nomination all along was the administration's refusal to allow him to complete his job application and provide the Senate with the basic information it needed to evaluate and vote on his nomination."^[5]

A bipartisan group of former Solicitors General wrote a letter objecting to the Democrats' demand for memos that Estrada had written while he was with the office. The letter argued release of prior memos by government employees to the public would endanger the Solicitor General Office's ability to provide confidential legal advice to the Executive Branch. (Two years later, Republican Senators would also request confidential White House memos in the confirmation hearing of Miers, who also had no publication record.)

Leaked internal memos to Democratic Senate Minority Whip Dick Durbin mention liberal interest groups' desire to keep Estrada off the court partially because "he is Latino," and because of his potential to be a future Supreme Court nominee.^[6] A spokesman for Durbin said that "no one intended racist remarks against Estrada" and that the memo only meant to highlight that Estrada was "politically dangerous" because Democrats knew he would be an "attractive candidate" that would be difficult to contest since he didn't have any record.^[6] Democrats argued that Estrada had extreme right-wing views, although others pointed to Estrada's difference with some conservatives on Commerce Clause issues.^[7]

On March 6, 2003, there was the first of seven failed cloture votes on Estrada.^[8] Fifty-five senators voted to end debate on his nomination and allow a final confirmation vote, and forty-four senators voted not to end debate.^[9] After twenty-eight months in political limbo and a protracted six-month battle using the filibuster, Estrada withdrew his name from further consideration on September 4, 2003.^[10] Bush nominated Thomas B. Griffith in his place, who was confirmed in 2005 under the terms of the Gang of 14 Deal.

With the benefit of hindsight, Jan Crawford Greenburg has said of the nomination that "[i]f Majority Leader Bill Frist had shown real leadership, he would never have allowed a Democratic minority to achieve the first-ever filibusters of appeals court nominees. If Trent Lott had been majority leader, Estrada would have been confirmed."^[11]

Numerous judicial nominees prior to Estrada had been kept off the courts, when the Senate refused to let the nomination out of committee for a floor vote. A filibuster had been used in 1968 to extend debate regarding the elevation of Associate Justice Abe Fortas to Chief Justice of the United States, but the Estrada filibuster was different in multiple ways. Estrada's was the first filibuster ever to be successfully used against a judicial nominee who had clear support of the majority in the Senate.^[12] Estrada's was the first filibuster of any court of appeals nominee.^[12] It was also the first filibuster that prevented a judicial nominee from joining a court.

Current life

Estrada is currently a partner at the Washington, D.C., law office of Gibson, Dunn & Crutcher LLP, where he is a member of the firm's Appellate and Constitutional Law Practice Group as well as the Business Crimes and Investigations Practice Group.

Estrada joined Rudy Giuliani's 2008 presidential campaign as a judicial adviser.^[13]

Referencing his own confirmation fight, in 2010, Estrada wrote a letter to the Senate Judiciary Committee supporting President Barack Obama's nominee to the U.S. Supreme Court, Elena Kagan.^[14] Estrada argued that one of the prerogatives of the President, under the Constitution, is to nominate people who share his judicial philosophy, even though Estrada does not share Kagan's judicial philosophy. In 1999, Kagan had been nominated by President Clinton to serve on the D.C. Circuit - the same court Estrada was later nominated to. At that time, Kagan was kept off the circuit court because Republicans - the majority party in the Senate - refused to give her a hearing or a vote. ^[15]

At her confirmation hearing on June 29, 2010 before the Senate Judiciary Committee, when asked by Senator Lindsay Graham whether she believed that Estrada was qualified to serve on an appellate court, Kagan responded affirmatively and added that she believed Estrada was qualified to serve on the Supreme Court as well. Kagan then told Senator Graham that she would put that in writing. She reaffirmed her position with Senator Coburn the following day, saying that she "..would have voted for him" referring to voting for his confirmation.^[16]

See also

• List of law clerks of the Supreme Court of the United States
• George W. Bush judicial appointment controversies
• filibuster
• cloture
• George W. Bush Supreme Court candidates

References

1. ^ Walsh, Elsa. "Minority Retort". The New Yorker. http://www.newyorker.com/archive/2005/08/08/050808fa_fact?currentPage=7. Retrieved 2009-06-01. 
2. ^ CNN Crossfire [1], 31 January 2003.
3. ^ Edward Lazarus, "How the Miguel Estrada Nomination Illustrates Our Out-of-Control Confirmation Process, And What We Can Do to Improve the System," FindLaw [2], 20 February 2003.
4. ^ Byron York, "Democrats Ambush Estrada," National Review Online. [3], 27 September 2002.
5. ^ Jesse J. Holland, "Democrats force nominee for court seat to withdraw," [4], 5 September 2003.
6. ^ ^{a b} Vlahos, Kelley Beaucar (February 12, 2004). "Former Aide in Memo Leak Seeks Probe of Dems". FOX News. http://www.foxnews.com/story/0,2933,111286,00.html. 
7. ^ Wittes, Benjamin. Confirmation Wars: Preserving Independent Courts in Angry Times, page 8.
8. ^ Senate roll call votes of 2003
9. ^ Snow, Tony; Asher, Julie (March 6, 2003). "Senators Fail to End Debate on Estrada". FOX News. http://www.foxnews.com/story/0,2933,80439,00.html. Retrieved 2008-06-12. 
10. ^ Bash, Dana (2003-09-05). "Estrada withdraws as judicial nominee; Bush slams 'disgraceful treatment'". CNN.com. http://edition.cnn.com/2003/ALLPOLITICS/09/04/estrada.withdraws/. 
11. ^ Greenberg, Jan Crawford. "The Fight Over Miguel Estrada Continues", Legalities, ABC News (2009-07-13).
12. ^ ^{a b} Curry, Tom. "Filibuster foes argue over '68 Fortas precedent; Historians say delaying tactics killed chief justice nomination; differences abound between then and now", MSNBC (2005-05-19).
13. ^ Oliphant, James (2007-09-06). "Giuliani hitches star to conservative legal group". Chicago Tribune. http://www.chicagotribune.com/news/nationworld/chi-070905giuliani,0,1519010.story. Retrieved 2008-10-27. 
14. ^ Estrada, Miguel. "Letter in Support of Kagan Nomination" via Washington Post (2010-05-14)
15. ^ Savage, David G. (September 27, 2002). "Little Light Shed on Bush Judicial Pick". Los Angeles Times: p. A-18. http://articles.latimes.com/2002/sep/27/nation/na-estrada27. Retrieved 2009-01-05. "The post Estrada hopes to fill is vacant because Republicans blocked action on two Clinton picks for the court: Washington attorney Allen Snyder and Harvard law professor Elena Kagan." 
16. ^ Bendavid, Naftali (July 20, 2010). "Miguel Estrada Is Back". The Wall Street Journal. http://blogs.wsj.com/washwire/2010/07/20/miguel-estrada-is-back/. 

Further reading

• Lane, Charles (September 24, 2002). "Nominee for Court Faces Two Battles; Senate Panel to Focus on Ideology, Immigrant Past". Washington Post. http://pqasb.pqarchiver.com/washingtonpost/access/190946911.html?dids=190946911:190946911&FMT=ABS&FMTS=ABS:FT. 

External links

• Biographical sketch at the United States Department of Justice
• Gibson, Dunn & Crutcher bio

Persondata
Name	Estrada, Miguel
Alternative names
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Date of birth	September 25, 1961
Place of birth	Tegucigalpa, Honduras
Date of death
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