PFAW Concerns About Miguel Estrada Detailed in Letter To Senate Judiciary Committee

September 25, 2002

The Honorable Patrick J. Leahy
Chair, Senate Judiciary Committee
United States Senate
433 Russell Senate Office Building
Washington, D.C. 20510

Dear Senator Leahy:

On behalf of the more than 600,000 members and supporters of People For the American Way (PFAW), I am writing to express our serious concern about the nomination of Miguel A. Estrada to the United States Court of Appeals for the District of Columbia Circuit. Based on our review of available information, we have significant reservations about whether Mr. Estrada possesses the judicial temperament and the commitment to open minded decision making and to fundamental civil and constitutional rights and liberties that must be shown by a nominee for such an important, lifetime position. We urge the Committee to question Mr. Estrada closely and to obtain and examine all relevant information on this nomination carefully and thoroughly before making a decision on this nomination.

As more than 200 law professors wrote to the Senate Judiciary Committee in July, 2001, no federal judicial nominee is presumptively entitled to confirmation. Federal judicial appointments are for life and significantly affect the rights of all Americans. This is especially true for the D.C. Circuit, which is the court of last resort in almost all cases concerning the important decisions of federal agencies with nationwide impact on employment, civil rights, communications, environment, and many other important matters. Because of these factors, and because of the Senate’s co-equal role with the President in the confirmation process, nominees must demonstrate that they meet appropriate criteria for confirmation. These criteria include having excellent professional qualifications and judicial temperament, an “open mind to decision-making,” and a “record of commitment to the progress made on civil rights, women’s rights, and individual liberties.”1

Far from showing that he meets these important criteria, Mr. Estrada’s record raises extremely troubling concerns. Much of Mr. Estrada’s relatively short legal career has been in the Solicitor General’s office. Yet his direct supervisor in the Solicitor General’s office for several years, former Deputy Solicitor General Paul Bender, has stated that Estrada is so “ideologically driven that he couldn’t be trusted to state the law in a fair, neutral way,” and that he is a “right-wing ideologue” with “an agenda that’s similar to Clarence Thomas’.” Los Angeles Times (April 11, 2002). While Mr. Bender has explained that Estrada was a “terrific oral advocate,” he concluded that Estrada “lacks the judgment” and is “too much of an ideologue to be an appeals court judge.” Newark Star-Ledger (Jan. 6, 2002); Washington Post (May 23, 2001).

As a lawyer in private practice, Mr. Estrada has expended significant time and effort in seeking to defend so-called anti-loitering statutes and ordinances, which have been demonstrated to disproportionately harm African-Americans and Latinos. Federal and state courts, including the Supreme Court, have invalidated a number of these provisions as violating the First Amendment and the due process clause of the Fourteenth Amendment, including in several cases that Mr. Estrada has worked on. Indeed, the Supreme Court struck down such a provision in Chicago v. Morales, 527 U.S. 41 (1999), despite arguments by Mr. Estrada to the contrary. In one case, Mr. Estrada went so far as to argue that the NAACP did not even have the standing to challenge such an ordinance because it was allegedly not relevant to the NAACP’s purpose in combating discrimination. The court squarely rejected that argument and struck down the statute. NAACP of Anne Arundel County v. City of Annapolis, 133 F.Supp.2d 795 (D.Md.2001). Mr. Estrada reportedly “offered to take the city’s case all the way to the U.S. Supreme Court, if necessary, free of charge,” but the city reached a settlement after the court’s decision. Baltimore Sun (April 27, 2001).

Even as he has argued against the First Amendment rights of individuals, however, Mr. Estrada has sought to use the First Amendment as a shield for a large company that had been found guilty of deceptive advertising by the Federal Trade Commission. In Novartis Corp. v. FTC, 223 F.3d 783 (D.C.Cir. 2000), the FTC ordered the manufacturer of Doan’s Pills to undertake corrective advertising to help remedy deceptive ads that it had previously run concerning the product’s comparative effectiveness. Notwithstanding his efforts to limit individual First Amendment rights in cases like Annapolis, and despite the settled constitutional doctrine that commercial speech receives less constitutional protection than the non-commercial speech of individual citizens, Estrada argued that the corrective advertising remedy violated the First Amendment. The D.C. Circuit panel, including several judges appointed by Republican presidents, unanimously rejected this claim.

Perhaps even more troubling, some of Mr. Estrada’s own comments about the issues raised by cases like Morales and Annapolis suggest a fundamental misunderstanding of or opposition to the role of the courts in reviewing legislative enactments and protecting individual rights. During a debate with Harvey Grossman of the Illinois ACLU on the subject during the National Public Radio program Justice Talking in 1999, Mr. Estrada made the following statement:

    But I think that the important point here is what it is that we, as a people, are allowed to do. Mr. Grossman had his hearing in the City Council. He expressed his views. He told his neighbors this was a bad idea. They felt something else was needed. And one of the that[sic] things we do as a society by reason of being a democracy is that we vote on what we think is a good idea, see if it works, and if it doesn’t, then we can scrap it. But what we do not do is to take the person that lost all of his arguments in the debate and try to bring the courts to trump on his side. Transcript of Justice Talking (April 26, 1999)(emphasis added)

This statement by Mr. Estrada betrays a fundamental misconception of the judiciary’s role in our democracy. It is, in fact, precisely when a legislature has used its power to violate the fundamental constitutional freedoms of the less powerful that judicial review becomes crucial. Americans are in fact “allowed” to take their cases to court and “trump” a city council or other legislature, even when it has previously rejected their arguments, in order to protect their constitutional rights. Mr. Estrada’s expressed view would mean that religious and racial minorities and others whose constitutional rights are threatened would have no recourse but to submit to the will of the majority. That view is antithetical to our Constitution and profoundly disturbing for a nominee to our federal courts.

Questions have also been raised about Mr. Estrada’s understanding of the continuing problems of discrimination and his commitment to equal opportunity. As a former law clerk to Justice Kennedy, Mr. Estrada was interviewed in 1998 about the extremely small number of minority law clerks at the Supreme Court. Mr. Estrada reportedly dismissed the numbers, stating that “if there was some reason for underrepresentation, it would be something to look into,” but concluded that he did not “have any reason to think it’s anything other than a reflection of trends in society.” USA Today (March 13, 1998). Mr. Estrada’s statements suggest a troubling disregard or lack of awareness about the role of present and past discrimination in limiting the ability of minorities to obtain such important positions, including the role of the vestiges of past discrimination in creating and perpetuating “trends in society.” More recently, Mr. Estrada reportedly has “made no secret of his disdain for liberal Supreme Court rulings favoring criminal defendants and affirmative action.” Los Angeles Times (April 11, 2002). Mr. Estrada should be questioned closely about his views concerning the continuing effects of discrimination and concerning Supreme Court decisions that have approved affirmative action to help solve those problems.

A recent news article has raised additional troubling questions relating to Mr. Estrada’s role in screening judicial clerkship candidates for Justice Kennedy. According to the article, one candidate stated that Estrada “asked me a lot of unfair, ideological questions” and “I felt I was being subjected to an ideological litmus test.” Another candidate reported that Estrada indicated that he was “screening out liberals” from clerking for Kennedy “because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in a case known as Romer v. Evans, which struck down a Colorado statute that discriminated against gays and lesbians.” J. Newfield, “The Right’s Judicial Juggernaut,” Nation (Oct. 7, 2002). Such use by Mr. Estrada of an “ideological litmus test”, if true, is extremely disturbing.

The same article raises serious concerns about Mr. Estrada’s work on a case concerning the power of judges to impose huge contempt fines on parties without according them criminal due process protections. Estrada was reportedly the principal lawyer who worked on the federal government’s amicus curiae brief in United Mine Workers v. Bagwell, 512 U.S. 821 (1994), which argued that $52 million in contempt fines against the union should be permitted to stand, even though the union was never allowed a jury trial on the facts. The Supreme Court unanimously rejected this argument. According to the Nation article, “Estrada misrepresented the legal precedents to fit his anti-union bias.” J. Newfield, “The Right’s Judicial Juggernaut,” Nation (Oct. 7, 2002).

We are also deeply troubled by the evaluation of Mr. Estrada’s nomination by the Puerto Rican Legal Defense and Education Fund (PRLDEF), which interviewed Mr. Estrada personally and has recently opposed Mr. Estrada’s confirmation. Among other issues, PRLDEF has raised serious concerns about Mr. Estrada’s judicial temperament, explaining that Mr. Estrada was “contentious, confrontational, aggressive, and even offensive” in his discussions with PRLDEF. PRLDEF Position Statement (September 17, 2002). Similar concerns have been raised by members of the Congressional Hispanic Caucus, which is announcing today its opposition to the Estrada nomination. Washington Post (September 25, 2002). These evaluations by such respected organizations are entitled to great weight and are serious cause for concern.

In short, the publicly available information raises serious questions and troubling concerns about the nomination of Mr. Estrada to a seat on this nation’s second most powerful court. We urge that the Committee thoroughly investigate and review each of the issues discussed above, as well as the concerns raised by others about Mr. Estrada’s nomination, at its upcoming hearing and in its continuing consideration of the nomination. The Committee should also continue to seek access to all relevant materials that can help provide insight into these matters. These serious concerns must be satisfactorily addressed before the Committee can vote on this important nomination.


Ralph G. Neas

Cc: All members of the Committee

1See letter from law professors of July 13, 2001 to Senate Judiciary Committee

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