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Past votes will haunt Chuck Schumer in coming Supreme Court struggle

Often, Minority Leader Chuck Schumer opposes or supports Supreme Court nominees based on the color of their skin

February 09, 2017

Ten years ago, Democrats made a gamble on Neil Gorsuch. They supported President George W. Bush’s nominee to the federal court of appeals, thinking that 38-year-old Caucasian beanpole wouldn’t become a Supreme Court justice anytime soon.

Though clearly a miscalculation, the vote reflects Democrats’ operating procedure on Republican nominations. In short, Minority Leader Chuck Schumer allows those he deems unremarkable to advance while blocking those he believes have high court potential. Sometimes that calculation boils down to race.

It’s shrewd, shameful and exactly why Democrats advanced Gorsuch while keeping Bush’s nominee, Miguel Estrada, off of the U.S. Court of Appeals for the District of Columbia Circuit.

Seven times the Senate tried to bring Estrada’s nomination up for consideration and seven times Schumer filibustered the vote. The Bronx brawler explained his Milesian calculus to Jack Newfield, comparing Estrada to “a stealth missile — with a nose cone — coming out of the right wing’s deepest silo.” In other words, he was excellent and therefore a threat.

Despite an almost evenly split Senate, Estrada was considered a shoo-in on the strength of his resume. A Harvard graduate, he worked in both the Clinton and Bush administrations, arguing 15 cases before the Supreme Court and earning a unanimous endorsement from the American Bar Association.

In the end though, the fact that Estrada was a Honduran immigrant ultimately sunk his nomination.

An aide to Illinois Sen. Dick Durbin summed up what Democrats couldn’t say publicly. In purloined emails that were later leaked to the press, the Democrat aide wrote his boss, warning that strategists had “identified Miguel Estrada (D.C. Circuit) as especially dangerous, he is Latino, and the [Bush] White House seems to be grooming him for a Supreme Court appointment.”

Afraid of the Hispanic judge’s high court aspirations, Schumer’s Democrats preemptively blocked Estrada. After a six-month confirmation battle, he removed himself from consideration. While Democrats cheered the victory, the Wall Street Journal complained that the party “has paid no political price.” That’s about to change.

On Tuesday, Schumer attempted to explain away his party’s record. “The Supreme Court, now more than ever, demands a higher level of scrutiny than lower court positions,” the minority leader wrote in Politico Magazine, “Senators from both parties have long recognized this.” But that excuse falls short and won’t save the minority leader during the coming confirmation struggle.

Taken together, the two episodes lay bare the naked partisanship of Schumer’s Democrats. They voted for Gorsuch before they opposed him because they miscalculated his potential. This came after they preemptively sank Estrada.