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On the Hill: Private Opinion

In recent weeks, a visibly angry Orrin Hatch has been appearing regularly on the Senate floor to vent about the Miguel Estrada nomination battle. More precisely, Hatch has been denouncing the filibuster mounted by Democrats to prevent a straight up-or-down vote on the Hispanic would-be judge, a vote that would surely place Estrada on the powerful D.C. Circuit Court of Appeals. The Democrats' tactics are "shameful" and "despicable," rages Hatch, the Senate Judiciary Committee chairman, an effort to "murder" Estrada and "destroy this man's career." During one February 26 harangue, Hatch got so worked up he later had to apologize for violating Senate decorum.

Hatch's bitterness, shared by many Senate Republicans, stems from the fact that in the most important judicial battle of the Bush administration to date, the GOP has few good options. Thanks to the careful spadework of their leader, Tom Daschle, Democrats are prepared to sustain their filibuster indefinitely--or at least until Republicans meet their one key demand: The Bush administration must release dozens, perhaps hundreds, of internal memos Estrada wrote as a top lawyer in the solicitor general's office from 1992 to 1997. No memos, Democrats say, no vote.

Democrats covet those memos, which contain Estrada's recommendations and legal opinions about a range of Supreme Court cases involving the federal government, because they're the only way to assess this genial cipher. Just 41 years old and a partner at the Washington law firm of Gibson, Dunn & Crutcher, Estrada has never been a judge and has hardly published an opinionated word. Because he is such a blank slate, many Democrats are convinced Estrada is a "stealth" ideologue who could wind up on the Supreme Court as a Hispanic Clarence Thomas. Estrada's almost cartoonish evasiveness in his single confirmation hearing didn't quell those fears: Estrada refused to name a single Supreme Court case over the past 40 years with which he disagreed and claimed that, although he is openly pro-life, he hadn't developed an opinion about Roe v. Wade. "My view of the judicial function … does not allow me to answer that question," he coyly explained.

To hear Republicans tell it, the Democrats' memo request is outrageous, unheard of, nothing less than a threat to the republic. Last month, Hatch claimed it would set an "earthshaking" precedent: "Never in the history of this country has anyone given those documents out of executive branch to the Senate or to anybody else." Republican Senator Michael Crapo argued that "the Department of Justice has never disclosed confidential deliberative documents on career lawyers in the solicitor general's office."

And, in a February 12 letter to Daschle, White House counsel Alberto Gonzales wrote that such memos had to be withheld so as to "maintain the integrity of the Executive Branch's decisionmaking process."

One reason Senate Democrats haven't been swayed by these arguments is that they're really not true: Democratic researchers have unearthed records from at least five judicial-confirmation hearings in which government legal memoranda were delivered to the Senate. Their favorite example is the Justice Department's release of memos during Robert Bork's 1987 confirmation battle, written by a lawyer in the solicitor general's office who held precisely the same job as Estrada. (Some Republicans have suggested the memo was not formally released but rather leaked, though they offer no evidence that this was the case.) Also instructive are memos written by Justice William H. Rehnquist when he was a Supreme Court clerk in the 1950s, which were made available to the Senate for his 1971 and 1986 hearings. As Evan P. Schultz recently pointed out in Legal Times, the Rehnquist example shows why these memos might help Democrats learn more about Estrada: In one of them, Rehnquist argued that, even though "it is an unpopular and unhumanitarian position," the 1896 Plessy v. Ferguson case--which upheld the constitutionality of racial segregation--"was right and should be reaffirmed." Schultz notes that the memo turned out to be a pretty good preview of Rehnquist's votes on the Supreme Court. Democrats don't know just what cases Estrada might have had a hand in, but they believe he concentrated primarily on criminal cases and may have "questioned or criticized a lot of landmark criminal decisions," according to one Judiciary Committee aide.

Senior Democratic Judiciary aides say several GOP senators would prefer to release at least some of the memos. Indeed, two Republicans, former GOP leader Trent Lott and Utah's Robert Bennett, have said as much publicly. But, as one Democratic aide puts it, "The White House said no." Which raises a question about the White House's real motivation: Is it safeguarding Estrada's nomination or safeguarding the secrecy of executive branch documents? Time and again, from the papers of former presidents to notes from Dick Cheney's energy-plan meetings to Justice Department deliberations over the Clinton scandals, the Bush administration has viewed the privileged nature of its internal documents as inviolable.

All of which leaves Senate Republicans in a tight spot: trying to shepherd through a nominee the White House very much supports but lacking any clear means, short of giving up the memos, to get him through. Little wonder, then, that they're contemplating extreme measures. Last week, The Washington Times reported that Pennsylvania Senator Rick Santorum was considering ways to increase pressure on Democrats after Congress returns from its Easter recess in late April. And Lott, apparently still itching to play field marshal, added that he had a plan of his own that might allow Republicans to circumvent a filibuster, which takes 60 votes to break, and confirm Estrada with a simple 51-vote majority. Lott wouldn't give details but ominously warned that his plan would mean going "nuclear."

What might Lott's "nuclear" option be? Two potential scenarios have Democrats chewing their nails. The first would be an audacious GOP effort to change Senate rules and outlaw filibusters in the case of judicial nominations--a possibility that Senate Republicans have suggested in both word and deed. Several Democrats note bitterly that Hatch, the Judiciary Committee chairman, has lately been circumventing committee rules when they've proved inconvenient. In a February 27 hearing of appeals court nominees Deborah Cook and John Roberts, for instance, Hatch shut off debate over Democratic objections and forced a vote on the nominations--even though, as Democrats pointed out, the committee's rules clearly require the support of at least one member of the minority party (which Hatch did not have) to end debate. Instead, he simply claimed--for the first time that anyone could recall--that the rule didn't apply to nominations. Democrats were similarly astonished when Hatch held one January confirmation hearing for three controversial nominees--Cook, Roberts, and circuit court of appeals nominee Jeffrey Sutton--even though Senate leaders of both parties had agreed in writing in the mid-'80s that controversial nominees would be considered one at a time, a pact that had been honored ever since. "He just unilaterally changed the rules," complains an anti-Estrada lobbyist.

Republicans' rhetoric also fuels the suspicion that they intend to unilaterally amend Senate rules to end the Estrada filibuster. "I believe what [Democrats] are doing is blatantly unconstitutional," Hatch argued on the Senate floor last week. "If the Founding Fathers wanted to allow or require supermajority votes with regard to the advise-and-consent clause, they would have said so. They did not. The natural conclusion from any constitutional scholar would be that we are entitled to an up-or-down vote as the exemplification of the advise-and-consent clause." Republicans take this notion so seriously that Dick Cheney--who, as vice president, also serves as president of the Senate--took a two-hour break from planning the Iraq war earlier this month to preside over a GOP-orchestrated Senate debate on the constitutionality question. "I think they'll try to undo the cloture rule via the Senate rules," predicts a Senate Democratic aide closely involved in the Estrada fight. But doing so, warns Illinois Senator Dick Durbin, would "invite a response and a chaotic result"--suggesting that Democrats might shut down the chamber in protest by raising endless procedural objections to Senate business.

The other, arguably more plausible, "nuclear" option would be a recess appointment. In that scenario, President Bush could simply install Estrada on the court when Congress is out of session, possibly as soon as next month's Easter recess. If appointed this way, Estrada could serve until the end of 2004 before having to face a Senate vote on his permanent confirmation. "If I had to bet, I'd say they recess-appoint him in August," says a senior Democratic Judiciary aide.

But, while a recess appointment would be a short-term victory for the White House, it could come at a heavy cost--Estrada's future as a Supreme Court justice. "Estrada's future, if he has one beyond the D.C. Circuit Court, would be over," Durbin says. "He could not be considered for anything else at that point. That's why I think [a recess appointment] is the White House's last option." Media coverage would focus on the fact that Bush had circumvented the confirmation process, immediately branding Estrada a "controversial figure." Institutionalists of both parties would be galled at such a slight to the Senate. (Just imagine how many hours Robert Byrd would spend waving around his copy of the Constitution.) Conservative Republicans themselves went on the record opposing recess appointments after Bill Clinton's 2000 recess appointment of Roger Gregory, his long-stalled nominee to a Virginia circuit court. (It is "outrageously inappropriate for any president to fill a federal judgeship through a recess appointment in a deliberate attempt to bypass the Senate," Oklahoma Republican James Inhofe fumed at the time.) And a recess appointment could well alienate moderate senators, especially Democrats who might otherwise consider supporting Estrada. "People would oppose him just on principle," says a leading anti-Estrada strategist.

So Republicans appear stuck with a bitter stalemate and "nuclear" options that could blanket them and their nominee in radioactive fallout. Their only way out would appear to be releasing Estrada's memos. It makes for an interesting case of political physics: The Bush White House's need for total victory on Estrada is an irresistible force, while its fetish for executive branch secrecy is an immovable object. Look for Orrin Hatch to offer more apologies in the months ahead.

This article originally ran in the April 7, 2003, issue of the magazine.