Supreme Court Justice Brett Kavanaugh’s confirmation process was truly unprecedented. First, he was met with wild antics by Senate Judiciary Committee Democrats. Then, at the 11th hour, he faced uncorroborated, nearly-four-decade old allegations of sexual misconduct as a minor, only one of which was remotely credible and none of which held up well to scrutiny. He was further subjected to flimsy charges of perjury which quickly fell apart, and deplorable, clearly bad-faith tactics by his opponents, who hoped to trip him up by any means necessary.
But in the end, Judge Kavanaugh became Justice Kavanaugh, and the unprecedented and unfair demonization of Kavanaugh energized the GOP’s base. President Trump should capitalize on these events by bringing forward an old name to fill Kavanaugh’s now-vacant seat on the D.C. Circuit Court of Appeals, namely, former Judicial nominee Miguel Estrada.
Estrada, a Honduran immigrant who arrived in the U.S. at age 17 with a limited command of English, was one of the most respected appellate lawyers in D.C. when President George W. Bush nominated him to the D.C. Circuit Court of Appeals (where Kavanaugh sat until this week) back in 2001.
Senate Democrats’ decision to completely block a vote on Estrada was precedent-setting. They let Estrada’s nomination languish when they held the majority, and then after losing the majority in 2002, Democrats resorted to a then-unprecedented partisan filibuster against him.
The stated reason for these actions, per a stolen memo addressed to then-Senate Minority Whip Dick Durbin, D-Ill., was that Estrada “is a Latino, and the [Bush] White House seems to be grooming him for a Supreme Court appointment.
This history is important, as it casts a shadow on a now-popular narrative as to why the antics concerning Kavanaugh were justified.
According to many on the Left, the Senate’s refusal to confirm former President Barack Obama’s nomination of Judge Merrick Garland to the seat now held by Justice Neil Gorsuch, was an unprecedented political offense. Judicial inventions sacred to the Left are in jeopardy. Thus, the no-holds-barred assault on Kavanaugh was justified.
But this narrative is false. Garland was praised by senior GOP senators at the time of his nomination. No one tried to ruin his life. And it was made it clear that blocking him was nothing personal, just business. Compared the character assassination faced by Kavanaugh, Garland’s treatment was kind.
With control of the Senate and a presidential election coming in nine months, the Republican majority chose not even to start the gears of the nomination process. As we have seen, this was not unprecedented. Far more extreme tactics had been pioneered against Estrada 15 years earlier by Garland’s proponents. Majority Leader Mitch McConnell, R-Ky., simply flipped the script.
From Sen. Ted Kennedy’s historic and demagogic “Robert Bork’s America” speech of 1987, announcing de facto ideological litmus tests for Judicial nominees, until McConnell’s speech in early 2016 stating that there would be no vote on a replacement for Justice Antonin Scalia until the next administration was inaugurated, confirmation battles had been a one-sided race to the bottom. Senate Democrats repeatedly uprooted existing norms for political gain. Each time, Senate Republicans slowly adjusted to the “new normal,” after first adhering to a de facto double standard. Estrada was the most clear-cut victim of this dynamic.
As the Washington Examiner’s Philip Klein notes, "It’s always important … to consider how a major event is viewed by one’s opponents." In other words, how will the narrative over Kavanaugh’s confirmation develop? This is why the nomination of Estrada to replace Kavanaugh on the D.C. Circuit Court of Appeals could be a political win as well as an excellent addition to the judiciary.
Trump should publicly announce that he’s chosen Estrada, flanked by Estrada’s Senate supporters from the early 2000s. McConnell should then run down the history of how Estrada was treated, how the judicial nomination process degenerated in the time since, and who is primarily at fault.
Now that former Majority Leader Harry Reid, D-Nev., has exercised the “nuclear option” to abolish judicial filibusters (Estrada’s supporters resisted that temptation), Estrada would be all but assured of confirmation.
The Republican base remembers Estrada very well. His re-nomination would keep the courts in the news and on their minds. The media would have little choice but to cover the nomination and explain why it is significant.
The spotlight that Estrada’s nomination would place on Democrats’ hypocrisy over Garland won’t phase hardcore partisans. But it will plant new seeds of doubt among persuadable voters. Estrada, who was 39 years old when he was first nominated, is still only 57. He is also more respected and even better qualified than he was in 2001, having gained the endorsement of Supreme Court Justice Elena Kagan.
In addition to a political and judicial victory, Estrada’s re-nomination would also send a powerful message to Democrats that the way to victory isn’t smears, obstruction, or crazy tactics. It’s winning elections.
Clifford Smith is a former congressional staffer, an attorney, and a member of the Federalist Society.