It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.
Durbin and his colleagues did as they were instructed. But they had nothing with which to kill the nomination -- no outrageous statement by Estrada, no ethical lapse, no nothing. What to do?
They brainstormed. Estrada had once worked in the Justice Department's Office of Solicitor General, right? (Appointed under the first President Bush, Estrada stayed to serve several years under Clinton.) That office decides which cases the government will pursue in the Supreme Court, right? And that process involves confidential legal memoranda, right? Well, why don't we suggest that there might be something damaging in those memos -- we have no idea whether there is or not -- and demand that they be made public?
Durbin and his colleagues knew the Bush Justice Department would insist the internal legal memos remain confidential, as they always had been. It wasn’t just the Bush Administration that thought releasing the documents was a terrible idea; all seven living former Solicitors General, Republican and Democrat, wrote a letter to Judiciary Committee chairman Patrick Leahy begging him to back off.
But the Democrats didn't back off. They had a new, very serious question to ask: What is Miguel Estrada hiding?
The answer was nothing, of course. But the strategy worked. Democrats stonewalled Estrada's nomination, and, after losing control of the Senate in 2002, they began an unprecedented round of filibusters to block an entire slate of Bush appeals-courts nominees, Estrada among them. The confirmation process ground to a halt. More than two years after his nomination was announced, Estrada, tired of what appeared to be an endless runaround, withdrew his name from consideration. Instead of being on the federal bench, he is now in private practice in Washington.
