Intelligence briefing / hit piece on Miguel Estrada
by "Alliance for Justice / Independent Judiciary". Original
URL (no longer active):
http://www.independentjudiciary.com/nominees/nominee.cfm?NomineeID=2
This document is a combination of the 2002 and 2007 versions retrieved from the Internet Archive.
Status of nomination: Hearing 9/26/02; Pending Senate Floor Voted out of Committee on 01/30/2003; Withdrew Nomination on 09/04/2003 after several failed cloture votes: March 6, 2003; March 13, 2003; March 18, 2003; April 2, 2003; May 6, 2003; May 8, 2003; July 30, 2003
Party Connection. Mr. Estrada is considered a rising star in the ranks of the Republican legal community with a compelling personal story of coming to the United States as a child with little skill in English. 1 He was appointed to a position in the Solicitor General’s office during the George H.W. Bush presidency and remained there through 1997.
Judicial Temperament. Some who know Mr. Estrada have expressed concern about his ability to hear cases fairly. Paul Bender, Mr. Estrada’s supervisor at the Solicitor General’s office and now an Arizona State University professor, is cited in the Washington Post as being “worried [that Estrada’s personal] views would spill into rulings if Mr. Estrada is asked to decide matters involving defendants' rights, affirmative action and other controversial subjects…. ‘I think Estrada lacks the judgment and he is too much of an ideologue to be an appeals court judge.’” 2
Another attorney, Carter Phillips, called Mr. Estrada “a somewhat more strident personality.” 3 Juan A. Figueroa of the Puerto Rican Legal Defense and Education Fund (PRLDEF) has said: “[W]e have reason to believe that Mr. Estrada may not have the compassion, open-mindedness, sensitivity, courtesy, patience and freedom from bias that an individual with the requisite judicial temperament must have to be an effective jurist on any court.” 4
Estrada’s Record in Private Practice. As an attorney with the Washington office of Gibson, Dunn & Crutcher, Mr. Estrada has often represented HMOs sued by patients and doctors.
In Aetna U.S. Healthcare v. Lazorko, the HMO was sued by the husband of a schizophrenic woman whose doctor refused to hospitalize her, and who then killed herself. Mr. Lazorko claimed that the financial disincentives imposed by the HMO on his wife’s doctor caused him to refuse to treat her mental illness. 5 Aetna appealed the appellate court’s decision to let the case go forward, arguing in a brief filed by Mr. Estrada and others that federal law does not allow a patient to sue her HMO for medical malpractice even if the HMO acted wrongfully, 6 but the Supreme Court refused to hear Aetna’s appeal. 7
In another case, Mr. Estrada argued on Aetna’s behalf that a trial court’s decision to grant doctors access to records in order to show that the HMOs wrongfully changed records of doctors’ procedures to less expensive procedures to pay the doctors less money constituted “a huge burden”. 8 The appellate court has yet to decide this issue. 9
In a third lawsuit, Mr. Estrada argued on behalf of HMOs accused of providing “secret incentives to providers” to limit care and cut costs and paying “bonuses to their claims reviewers to encourage them to deny claims…”10 that the courts have no power to hear such claims.
Mr. Estrada is currently a partner in the Washington, DC, office of Gibson, Dunn & Crutcher, LLP. His pro bono work has included a federal habeas challenge on behalf of a death row inmate and representation in separate cases of the cities of Chicago and Annapolis74 in challenges to their anti-loitering ordinances.
Anti-loitering ordinances have long been a concern of civil libertarians, as well as of advocates for low-wage workers. The Supreme Court ruled against Mr. Estrada's position, striking down the Chicago ordinance because it gave police too much discretion in enforcement and because it was overly broad, potentially encompassing a large degree of harmless activity.
Solicitor General’s Office. In United Mine Workers of America v. Bagwell, Mr. Estrada submitted an amicus brief on behalf of the U.S. government, arguing that $52 million in contempt fines against the union should stand, even though the fines were imposed without allowing the union a jury trial on the charges. The Supreme Court ultimately rejected Mr. Estrada's position, ruling that imposing fines without a jury trial violated the constitution. 11
Opposition by Hispanic groups. The nomination of Miguel Estrada has caused controversy among some national Latino groups. Legal Times reports that Mr. Estrada's nomination is "reviving sharp divisions in the Hispanic legal community."1 The Puerto Rican Legal Defense and Education Fund has taken a strong position against his confirmation.
The Congressional Hispanic Caucus announced its opposition on September 25, 2002, quoting CHC chair Silvestre Reyes: "'Mr. Estrada fails to meet the CHC's evaluation criteria for endorsing judicial nominees.'" Congressman Reyes added:
The CHC would like to see that Hispanic judicial nominees have demonstrated a commitment to protecting the rights of Latinos through their professional work, pro bono work, and volunteer activities; to preserving and expanding the progress that has been made on civil rights and individual liberties; and to expanding advancement opportunities for Latinos in the legal profession. Mr. Estrada falls short of meeting the CHC's criteria in each of those categories.
In addition to the CHC opposition, the Mexican American Legal Defense and Education Fund and the California La Raza Lawyers expressed "serious concern" with the Estrada nomination in a letter dated September 24, 2002.
Other Relevant Information. When the USA Today interviewed Mr. Estrada for an article discussing the issue of Supreme Court Justices’ rarely hiring minorities as law clerks and noting that Estrada was one of only four Hispanic clerks ever hired, he dismissed the statistics: “If there was some reason for underrepresentation, it would be something to look into…. But I don't have any reason to think it’s anything other than a reflection of trends in society.” 12
Mr. Estrada is a board member of the arch-conservative Center for the Community Interest and a member of the Federalist Society and lists his net worth as $378,000 as of 2002.
The US Court of Appeals for the District of Columbia. The court to which Mr. Estrada has been nominated is unique among federal appellate courts in this country with exclusive appellate jurisdiction over a broad range of critical issues, including enforcement of key environmental, consumer, and worker protection laws. The DC Circuit is currently made up of four Republican appointees and four Democratic appointees, with four vacancies. During Clinton's term in office, Senate Republicans blocked the appointments of Elena Kagan and Alan Snyder, setting the stage for a Republican-appointed majority under President George W. Bush.
The reach of the court's influence is not limited to its singular docket. Three sitting US Supreme Court justices are former DC Circuit judges. With few exceptions, appointees to the DC Circuit have been judges, scholars, and practicing attorneys of great distinction and accomplishment.
1 See Kim Eisler, “Young Guns”, Washingtonian, September 1998.
2 Bill Miller, “Appeals Court Nominees Share Conservative Roots; Records of Roberts and Estrada Are Being Studied Closely”, Washington Post, May 23, 2001.
3 Id.
4 Letter from Juan A. Figueroa to Senator Leahy, dated June 11, 2000.
5 Lazorko v. Pennsylvania Hospital, 237 F.3d 282 (3d Cir. 2000).
6 See “Lazorko Elects Not To Reply To Aetna’s High Court Petition For Certiorari”, Mealey’s Managed Care Liability Report, June 1, 2001.
7 Cert. denied, Aetna U.S. Healthcare v. Lazorko, Docket No. 00-1641 (June 25, 2001).
8 In re Managed Care Litigation, 135 F. Supp. 2d 1253 (S.D. Fla. 2001).
9 See “Doctors want to look at managed care claims computers” Associated Press, June 4, 2001.
10 “JPML to Hear Motion For Consolidation of Aetna ERISA/RICO Suits”, Pension Fund Litigation Reporter, October 19, 2000.
11 See United Mine Workers v. Bagwell, 512 U.S. 821 (1994).
12 Tony Mauro, “Corps of clerks lacking in diversity”, USA Today, March 13, 1998.
74 NAACP of Anne Arundel County v. City of Annapolis, 133 F.Supp. 2d 795 (D.Md. 2001).
Estrada's nomination is officially supported by these organizations: the Republican National Committee, the Heritage Foundation, and the Washington Legal Foundation.
Estrada's nomination is officially opposed by these organizations: Americans for Democratic Action, the American Federation of Labor and Congress of Industrial Organizations, Alliance for Justice, the American Association of University Women, the Congressional Black Caucus, the Congressional Hispanic Caucus, EarthJustice, Feminist Majority, the Leadership Conference on Civil Rights, the Mexican American Legal Defense and Education Fund, the National Association for the Advancement of Colored People, the National Association to Repeal Abortion Laws, the National Council of Jewish Women, the National Employment Lawyers Association, the National Family Planning and Reproductive Health Association, the National Farm Worker Ministry, the National Organization for Women, the National Partnership for Women and Families, the National Women's Law Center, People for the American Way, Planned Parenthood, and the Southwest Voter Registration and Education Project.