“Let me talk to you for a minute about the world according to you as you see it,” Senator Dick Durbin, white Illinois Democrat, lectured during her confirmation hearings. “It is a world, in my opinion, that is outside the mainstream of America.”
It was Durbin, not Judge Brown, who was far outside “the mainstream of America,” according to California voters. Just a few years before her nomination to the D.C. appeals court, Judge Brown faced California voters on whether to keep her seat on the state’s supreme court. A whopping 76 percent of California voters chose to keep Judge Brown on the court. In crazy liberal San Francisco, that vote in support of Judge Brown was more than 79 percent.
In 2014, his last reelection campaign, Dick Durbin mustered a paltry 53.5 percent of the vote in the state of Illinois.
The first and perhaps the most famous of President Bush’s judicial nominees to be stymied by unprecedented Democrat filibusters was Miguel Estrada, nominated in 2001 to the D.C. Circuit Court of Appeals. Born in Honduras, Estrada was a sterling immigrant success story. After graduating with honors from Columbia and Harvard universities, Estrada worked for the U.S. attorney’s office and Department of Justice. He was widely heralded for his hard work and “towering intellect.” No less than Supreme Court justice Elena Kagan, nominated to the high court by President Barack Obama, would later declare that Estrada deserved to be confirmed to not only the D.C. Court of Appeals, but even to the Supreme Court of the United States.
But for Democrats in the United States Senate, there was a glaring problem. Miguel Estrada, they were later caught conspiring in written memos, was “Latino.” And he was being backed by the “wrong” people—meaning principled conservatives.
In 2003, I was covering judicial nominations for the Washington Times when a reliable source of mine called to tell me that a batch of highly explosive memos written by Democrat staffers on the Senate Judiciary Committee had been discovered after staffers had left them on an unsecured staff computer server. Clearly spelled out in the memos was the conspiracy among Democrats on the Senate Judiciary Committee to block the nomination of Miguel Estrada specifically because he was Hispanic. In the memo to Dick Durbin, staffers openly argued that Estrada was “especially dangerous” because “he is Latino.”
Democrat opposition to Estrada was further intensified because they viewed him as a potential pick for the Supreme Court. At the time, he would have made history by being the first Hispanic on the high court. Working closely with outside lobbyists opposed to Bush’s judicial nominees, Democrats on the Judiciary Committee plotted their effort to block Estrada. In a memo dated November 7, 2001, a Durbin staffer recounted a meeting Durbin had missed with Ted Kennedy and the outside lobbyists.
“[Y]esterday’s meeting focused on identifying the most controversial and/or vulnerable judicial nominees, and a strategy for targeting them,” the Durbin staffer wrote. “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.”
Democrat opposition to Estrada over his “minimal paper trail” is particularly ironic considering liberals’ supposed opposition to holding Hispanics living in the United States responsible for a lack of documentation. Why wasn’t Estrada merely “undocumented” in their eyes? Why did Democrats have to oppose him simply because he had a “minimal paper trail”? Or was it just because he was a “Latino” who might be destined for the Supreme Court?
When I confronted Durbin over the astonishing admission of racism in their effort to block Estrada, he refused to condemn the plot. Instead, he only complained that the dastardly memos never should have been revealed to the public. He claimed that smoking-gun emails had been “stolen.” Eventually, after I reported on the racist plot, staffers for Durbin claimed that the memos failed to capture just how un-racist Democrats on the Senate Judiciary Committee actually were. Estrada was “dangerous,” they argued, because he was “Latino”—in a good way. Meaning that being Latino was such a positive attribute for Miguel Estrada that it would make it difficult for them to oppose him and therefore he should be filibustered.
In other words, in Democrats’ racial purity, they had loved Miguel Estrada too much. They loved him to death.
Welcome to Washington politics.
Anyway, as if that made any difference to Estrada. Whether it was because Democrats hated Hispanics or loved them, Estrada was being filibustered by Democrats because he was Latino. By any definition of “racism,” this would certainly qualify. For Estrada himself, it certainly did. And, in 2003, after more than two years of being filibustered, Estrada withdrew his nomination and returned to private practice. Senator Ted Kennedy issued a jubilant press release declaring it “a victory for the Constitution.”
Sean Rushton, an outside advocate working to get constitutionalist judges confirmed to the federal courts, saw the treatment of Janice Rogers Brown and Miguel Estrada quite differently from the way Kennedy saw it.
“With Miguel Estrada, and again in [the case of Janice Brown],” he told me at the time, “we see a highly qualified lawyer who is an ethnic minority and who happens to be conservative again being blocked. There’s a real pattern here that seems to establish a Democrat double-standard for conservatives who happen to be ethnic minorities.”
It wasn’t just qualified minorities that Democrats worked furiously to keep off the federal bench. The secret memos also revealed how they actively sought to stack certain judiciary panels in order to rig the outcome of certain cases being decided by the courts. In one such case, Democrats on the Senate Judiciary Committee conspired to block the nomination of one of President Bush’s nominees to the Sixth Circuit U.S. Court of Appeals until after that appellate court decided on two major affirmative action cases dealing with the University of Michigan and its law school.
In 2001, George W. Bush nominated Judge Julia S. Gibbons, a respected constitutionalist judge from Tennessee, to a Cincinnati-based court—the same year U.S. district judge Bernard Friedman ruled that the admissions policy at the University of Michigan clearly had racial motivations similar to a quota system. The case went to the Sixth Circuit and Democrats revealed in those memos that they wanted to delay a conservative nominee to the court until the decision had been decided.
“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,” staffers wrote.
The plot worked out exactly as Democrats hoped. While Judge Gibbons was eventually confirmed on a 95–0 vote to the appeals court, it was not until after the Sixth Circuit ruled in favor of upholding the affirmative action programs at the University of Michigan and the law school. But their underhanded victory would be short-lived. In a blow to Democrats’ unstinting efforts to inject race into every corner of American life, the Supreme Court later decided to take up the Sixth Circuit’s perverted ruling on affirmative action. The high court reversed the lower court and affirmed that racial quotas as used by the University of Michigan were illegal, but that race could be a consideration for admission for a time. The majority opinion ruled that race should be a time-limited admissions factor and eventually phased out.
With President Bush, constitutionalists had the best advocate in the White House since President Reagan. But in the 2000 election, voters also delivered a grievous blow to Republicans in the U.S. Senate. Going into the election, the GOP held an eight-seat advantage, 54 to 46. This advantage was entirely wiped out by the election, leaving the Senate teetering on a 50–50 tie. This meant that for the first three weeks of January 2001, Democrats held control with Vice President Al Gore holding the tie vote as president of the Senate. After Bush’s inauguration, that tie vote would go to Vice President Dick Cheney.
But given Republicans’ flawless record for screwing up, the
y soon lost even that slim advantage when on May 24, 2001, Senator Jim Jeffords, a Vermont “Republican,” abandoned the party and became an Independent who caucused with Democrats. This left Republicans at a 51–49 disadvantage, meaning—crucially—that Republicans lost the chairmanship of the Senate Judiciary Committee. Democrats took full advantage of Republican misfortune and began blocking President Bush’s judicial nominees, even after eight years of President Clinton’s nominees piling up inside the federal courts.
As maddening as all this was, what happened next—after Republicans regained control of the Senate—was even more infuriating. In 2002, President Bush bucked history by picking up seats in his first midterm. Republicans gained two seats in the Senate and eight seats in the House. This kind of cushion would give Republicans plenty of room to move judicial nominees out of the Senate Judiciary Committee. It also meant that those nominees would generally go to the Senate floor with majority support. But Democrats had other ideas. Presurred by outside special interest lobbyists, senate Democrats broke with history and began for the first time filibustering routine judicial nominees who had the full support of a majority of the U.S. Senate. In other words, senate Democrats were thwarting the clear intent of the Constitution by using parliamentary tricks to prevent the senate from confirming a president’s judicial nominees even though they had a majority in the US Senate.
This made Democrat filibusters of Janice Rogers Brown, Miguel Estrada, and Julia S. Gibbons unprecedented.
The only reason Democrats had this power to thwart such qualified nominees who had clear support from the full Senate was the arcane, tradition-bound rules of the U.S. Senate. Nothing in the Constitution stipulates anything about giving any minority in the U.S. Senate the right to undermine the will of the full Senate when it comes to confirming the president’s judicial nominees. Or when it comes to anything else, for that matter. But those were the rules that the Senate had agreed to at the formation of every new Senate every two years going back decades or longer. As conservative frustrations grew both inside the Senate and among outside observers over these Democrat filibusters, some began talking about changing the Senate rules to remove the sixty-vote threshold for confirming judicial nominations.
Senator Trent Lott, Mississippi Republican and former leader of the Senate, had confidently told me of a “nuclear option”—a parliamentary maneuver that could be deployed to clear the unprecedented backlog of qualified constitutionalist nominees. This would entail a bare majority of the Senate (meaning just 51) voting to change the rules so that nominees could be confirmed on a straight up-or-down vote. It was such a dangerous and secret idea that Lott referred to it as “nuclear.” And, of course, the fallout inside the cordial and collegial Senate would be “nuclear” as well. As if there wasn’t already plenty of “nuclear” fallout left by recalcitrant Democrats who were clearly straining the rules and violating the clear will of the U.S. Senate in their effort to corrupt the federal judiciary.
So, what did Republicans wind up doing? Did they employ the “nuclear option”? Did they bring sanity to the U.S. Senate? Did they take advantage of their majority control of the chamber to advance the installation of principled constitutionalist judicial nominees to the federal bench?
Of course not.
Instead, a band of the weakest Republicans abandoned the supposedly conservative party and formed with Democrats the insidiously named “Gang of Fourteen”—seven members on each side—to try to prevent the nuclear option. The idea was that the seven Republicans would vote against the nuclear option as long as the seven Democrats voted to proceed on considering some of the filibustered judicial nominees. In the end, it was a negotiation with Democrats that broke the logjam of Bush’s nominees and confirmed a handful of them to the positions for which they were nominated.
Even though Republicans had all the control they needed to confirm every last one of the nominees, they still agreed to kill some of the nominations that Democrats and their outside lobbyists were most opposed to. Those sacrificial nominees were some of President Bush’s most constitutionally principled nominees.
At this point, three of the nominees had already withdrawn their names from consideration and five of the seven remaining were confirmed. Both Henry Saad and William Myers were denied an up-or-down vote. Saad was denied due to Senator Harry Reid’s concerns about his national security background (a violation of Senate rules) and Myers was denied due to alleged anti-environmental views.
All of this acquiescence by Republicans was done in the name of keeping the peace in the United States Senate. Sadly, yet predictably, Democrats had no intention whatsoever of keeping the peace once they regained power.
Of course, none of the shady backroom dealing was any solace to Miguel Estrada, who had already abandoned his nomination after two years of waiting—and all because he was Latino. Perhaps most maddening of all was that part of the disgusting sellout deal with Democrats stipulated that President Bush would get certain nominees confirmed—on the condition that he never nominate them to a higher bench. Janice Rogers Brown, the splendid jurist who was born to sharecropper parents in segregated Alabama, was one of those dealt such an insulting blow. Democrats agreed to place her on the D.C. Court of Appeals so long as Republicans agreed to never nominate her to any higher court.
Aside from being a craven abandonment of principle, the deal struck me as entirely unconstitutional as well. What right does anyone—even a sitting U.S. president—have to make any deal that curtails a president’s power to nominate anyone he chooses to any position in the federal judiciary? That is a power reserved for the president and the president alone. No one—and especially not some gang of deleterious Democrats or soft-spined Republicans in the U.S. Senate—should have the power to undermine that executive power.
Republicans may have been too timid to deploy the nuclear option. But—as was predicted at the time—when Senator Harry Reid, Nevada Democrat, gained power over the Senate in 2007, he would have no such weak-kneed hang-ups. Reid invoked the nuclear option in 2013, meaning only a simple majority was needed to pass judicial nominees. He did not apply the rule to Supreme Court nominees, mostly due to concern that Republicans would weaponize that power in the future, which, of course, they ultimately did anyway.
Conservative disappointment over judicial nominations under George W. Bush did not end there. In addition to leaving fine jurists such as Miguel Estrada and Janice Rogers Brown wounded on the field, the Bush years saw a decidedly spotty record appointing solid justices to the Supreme Court. When Supreme Court justice Sandra Day O’Connor announced her retirement, it was an opportunity to replace a mild constitutionalist with a more principled one. President Bush nominated federal judge John G. Roberts, a darling of Washington establishment conservatives. But before confirmation hearings could get under way, tragedy struck. Supreme Court chief justice William H. Rehnquist—one of the greatest constitutionalist stalwarts of the past half century—died. Bush withdrew Judge Roberts’s nomination to replace O’Connor and renominated him to replace Rehnquist as chief justice. Suddenly the stakes were so much higher.
Over strenuous opposition from Democrats, Roberts would get handily confirmed by the Senate. Since then, much has been made about Chief Justice Roberts’s deciding vote in 2014 to uphold Obamacare. But anyone who sat through Roberts’s confirmation hearings should have been able to predict exactly how a Justice Roberts would come down on that case. Despite the outcome of that particular case, Roberts’s adherence to a strict philosophy against judicial activism was clear. Throughout the hearings, he called it “judicial humility” and he was clearly committed to it.
But in the case of the Obamacare ruling, it was pretty harsh medicine to take. Roberts’s written opinion seems unprincipled and indefensible but his message was absolutely clear. The other two branches of government were resoundingly clear that they wanted a massive new federal program to take over the health industry in America. If the American people wanted to undo that ef
fort, they would have to do it at the ballot box. The federal courts were not going to do it for them.
This ruling was certainly in keeping with Roberts’s view of “judicial restraint.” It was also his effort to salvage the reputation of the federal courts, which for far too long had exhibited undue interference in the deepest recesses of American life. Still, many constitutionalists were outraged that a Republican president and a Republican Senate would nominate and confirm a chief justice who would later cast the deciding vote to uphold Obamacare—the greatest big-government assault on freedom in America in modern times.
After getting Roberts confirmed to replace the great Chief Justice William Rehnquist, President Bush and his establishment allies were mighty pleased with themselves. This was still nine years before Roberts’s ruling on Obamacare, and the strict constitutionalists who had dutifully supported President Bush for eight years were pleased. Their loyalty had paid off. But, still, it was something of a draw. In the best case, replacing Rehnquist with Roberts simply maintained a safe constitutionalist seat. Replacing a swing vote like Sandra Day O’Connor was a pickup opportunity for conservatives. Or, at least, it was something of a half pickup. And thanks to a growing effort inside organizations such as the Federalist Society, a solid bank of young, principled constitutionalists had been identified to help Republican presidents pick good judges and justices who wouldn’t turn hotly activist as soon as they were given lifetime jobs on the federal bench. No more David Souters! President Bush had a long list of good people to choose from whose background, writings, and rulings had been thoroughly vetted.
He ignored them all.
Riding a wave of pride over Chief Justice Roberts’s confirmation, President Bush picked a friend—his own lawyer—to be on the high court. Harriet Miers was a loyal friend to President Bush. She was from Texas but had become a blue-chip member of the Republican establishment in Washington. But she had never operated as anything other than a lawyer. She had never ruled on a case. She had no discernible judicial philosophy. She was, at best, a complete unknown.
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