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Wednesday, April 7, 2010 as of 11:14 AM ET


Lee Ross

Supreme Court


The Kagan Hearing’s Surprise Winner

June 30, 2010 - 8:04 PM | by: Lee Ross

The biggest winner of the Elena Kagan confirmation battle may be a conservative lawyer who never stepped foot inside the hearing room and was once on the fast track to a seat on the bench Kagan will probably soon occupy.

As unlikely as it may have seemed at the start of the week, Miguel Estrada has emerged as the wronged hero seven years after he capitulated in a bitter partisan fight over a seat on a federal appellate court. He drew words of praise from Kagan, Republicans on the Senate Judiciary Committee and even the panel’s top Democrat.

“I do applaud Mr. Estrada who is a superb lawyer for what he had to say,” Sen. Patrick Leahy, D-Verm., said after the close of Wednesday’s hearing in reference to a public letter of support Estrada wrote on behalf of Kagan.

Leahy’s magnanimity is in stark contrast to the concerns he and other Democrats expressed about Estrada who in 2001 was President George W. Bush’s nominee for a seat on the D.C. Circuit Court of Appeals.

Sen. Charles Schumer, D-N.Y. was quoted at the time describing Estrada as “like a Stealth missile — with a nose cone — coming out of the right wing’s deepest silo.”

Estrada was widely believed to be a future Supreme Court pick until Democrats filibustered his court of appeals nomination. After a contentious two year fight Estrada withdrew his nomination. The sting of that battle still sticks with Senate Republicans.

“Elena Kagan is an impeccably qualified nominee,” Estrada wrote in his letter–the first received by the committee in support of Kagan’s nomination. “She could become one of our great justices.”

Kagan was asked about Estrada’s letter on Tuesday and said his comments reflect well on the person she first met as a law school classmate more than 20 years ago. “And I was deeply touched when I read that letter, deeply grateful to him, of course, and all of the nice things that he said about me I would say back about him double.” Kagan then said Estrada is qualified to sit on an appellate court and the Supreme Court.

Sen. Lindsey Graham, R-S.C., undoubtedly agrees, “I think it’s one of the great tragedies for the country that he was never able to sit on an appellate court.”

Depending on who you talked to at the time Estrada’s nomination was held up because as Republicans claimed racial politics were in play (he was born in Honduras) as well as his strong ties to conservatives. Or as Democrats objected, to the Bush Administration’s refusal to turn over internal documents from Estrada’s service in the Solicitor General’s office. On Wednesday, Kagan effectively shot down the latter argument when she agreed with the policy of keeping those internal memos under wraps.

Leahy would not comment on the suggestion that given Kagan’s glowing review of Estrada President Obama should (re)nominate Estrada to the federal bench. Of course, Estrada who is a major lawyer at a Washington D.C. law firm may no longer be interested in becoming a judge and may take little solace from Democratic praise so many years after the fact. Nonetheless, Leahy called Estrada a superb lawyer and of the letter: “I think it meant a lot to her and it also speaks to the fact that here’s a person who has not reflected what he does based on his own personal experience but what he thinks is best for the country. And I applaud him for that.”

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