President Bush first nominated Miguel Estrada to the D.C. Circuit Court of Appeals on May 9, 2001. The Senate Judiciary Committee held a hearing on his nomination on September 26, 2002. The Committee did not vote on his nomination prior to the close of the 107th Congress; therefore, his nomination died. President Bush re-nominated Estrada to the D.C. Circuit Court of Appeals on January 7, 2003. Chair of the Judiciary Committee Senator Orrin Hatch (R-UT) scheduled a vote on Estrada's nomination in Committee on Friday, January 24, 2003. The Democrats requested a delay on the vote, so the Committee will vote on Estrada on January 30, 2003.

Prior to the September hearing, California La Raza Lawyers joined MALDEF in a letter and supporting memorandum to the Senate Judiciary Committee concluding that we had serious concerns about whether Estrada would fairly review issues that would come before him if he were to be confirmed to the life-time appointment of judge on the D.C. Circuit Court of Appeals. At that time, a number of other Latino organizations also expressed serious concerns about his record, namely, the National Council of La Raza (NCLR), Southwest Voter Registration and Education Project (SVREP), Labor Council for Latin American Advancement (LCLAA), and the National Association of Latino Elected and Appointed Officials (NALEO). Also, the Puerto Rican Legal Defense and Education Fund (PRLDEF) and the Congressional Hispanic Caucus took formal positions opposing the Estrada nomination prior to the hearing. We supported the Senate Judiciary Committee holding a hearing at which Estrada had the opportunity to address our serious concerns, as well as any other concerns that had been brought to the Committee's attention.

The memorandum below summarizes the key concerns that we brought to the Senate Judiciary Committee and the White House's attention prior to Estrada's hearing, and Estrada's failure to allay our concerns either at his hearing or in written responses to questions submitted by Senators after the hearing. In a number of areas, Estrada clearly confirmed that where we had serious concerns, those concerns were valid. In a few areas, Estrada simply failed to provide any new information to change the concerns we had raised. With a nominee with a limited public record, having not served in any judicial position or written any scholarly work since his law school days, it was incumbent on Estrada to establish that he would review matters fairly if he were to be confirmed as a judge. He failed to meet this obligation.

There are serious doubts as to whether Estrada would recognize the First Amendment rights of Latino urban youth and Latino day laborers to congregate and associate on public streets.

In two cases Estrada took on without charging a fee, he argued against the 1st Amendment rights of minorities to congregate and associate on public streets. See Brief of Amici Curiae U.S. Conference of Mayors In Support of Petitioner, 1997 U.S. Briefs 1121, City of Chicago v. Morales, 527 U.S. 41 (1999); City of Annapolis' Reply Memorandum in Support of Motion for Summary Judgement and Opposition to the Plaintiff's Cross-Motion for Summary Judgement, NAACP v. City of Annapolis, 133 F.Supp.2d 795 (D. Md. 2001). These cases involved ordinances passed by cities that were designed to curb gang and drug activity. In the Chicago case, the Supreme Court held that the ordinance was unconstitutional. In the Annapolis case, the federal district court held that the ordinance was unconstitutional. Despite these clear rulings from federal courts that these ordinances infringe on the rights of those arrested under the ordinances -- individuals who are primarily African-American and Latino -- Estrada appears to continue to believe such ordinances do not violate the 1st Amendment rights of minorities. Estrada also has served on the board of the Center for the Community Interest (CCI), an organization which advocates for problematic anti-loitering ordinances.

Many of the individuals who are targeted under such ordinances are minorities, and often, Latino urban youth are harassed by police enforcing such ordinances. In other contexts, beyond the criminal context, our community has had to fight for the right to congregate and associate on public streets. This is the case of day laborers who are most often newly arrived immigrants who look for work by congregating on particular public streets to wait to be offered a manual labor job for the day. It is unclear whether Estrada would recognize the 1st Amendment rights of either the Latino urban youth or the Latino day laborers, which causes us deep concern. Estrada did not address our 1st Amendment concerns at his hearing or in his written responses, so our concerns in this area continue.

Estrada would not likely place proper limits on law enforcement as required by the Fourth Amendment.

After graduating from law school in 1986, Estrada spent two years clerking for high level federal judges. During much of his career after that, Estrada worked on behalf of the federal government prosecuting criminal defendants. He worked for two years for the U.S. Attorney's office in the Southern District of New York, and he worked for five years for the Solicitor General's Office in the U.S. Department of Justice. During those years, he became known as someone who focused his work on criminal prosecution.

As a government attorney, Estrada weighed in on cases, arguing for broader leeway for law enforcement to search and arrest suspects and less protections for those who are the targets of law enforcement efforts. For example, Estrada argued on behalf of the government in the case of Richards v. Wisconsin, 520 U.S. 385 (1997) where the question before the court was whether Wisconsin could retain a steadfast rule that police officers are never required to knock and announce when executing a search warrant in a felony drug investigation after the Supreme Court had ruled that the Fourth Amendment incorporates the common-law knock and announce rule, while in certain circumstances law enforcement may sometimes allow law enforcement to not knock and announce. See also Powell v. Nevada, 511 U.S. 79 (1994) (In this Fourth Amendment case, Estrada argued the United States' position, which was on the same side of the state but a different argument).

Also troubling, Estrada served on the board of the CCI when it argued in the case of U.S. v. Knights, 534 U.S. 112 (2001), that warrantless, suspicionless searches of probationers and parolees are constitutional. CCI argued for the application of a diminished standard of review, one appropriate for prison, to be applied in the outside world when probationers and parolees are involved. Specifically, CCI requested that the legitimate interest test, currently used to assess prison policies that infringe on constitutional rights, apply to reasonableness analysis of police search and seizures of probationers and parolees. Ultimately, the Supreme Court did not go as far in stripping Fourth Amendment rights from those outside of prison as CCI had argued. In response to written questions from Senator Richard Durbin (D-IL), while Estrada claims that he has no recollection of participating in a Board meeting on this case, and further states that he does not know whether he agrees with the CCI position, he notes the case "resulted in a unanimous opinion by the Supreme Court that appears to vindicate the position urged by CCI." Estrada's characterization of the Court's ruling is problematic.

Because Estrada has argued and been associated with positions consistently on the side of law enforcement when evaluating potential Fourth Amendment violations, we conclude that he unlikely would be able to recognize the limits on law enforcement that the Fourth Amendment requires, in order to protect those who are subject to law enforcement practices.

It is uncertain whether Estrada would follow Supreme Court precedent set in Miranda v. Arizona, 384 U.S. 436 (1966), which protects a criminal suspect's right not to make incriminating statements against himself.

We recognize that in a case in which he represented a criminal defendant pro bono, Estrada did argue for Miranda protections for an incarcerated immigrant defendant who was seeking habeas relief from his state conviction. See Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989). That case, however, was decided in 1989. Since then, Estrada joined the national board of CCI in 1998. CCI's amicus brief in Dickerson v. U.S., 530 U.S. 428 (2000), put forward two very troubling arguments. First, CCI argued that a statute, 18 U.S.C. Section 3501, governed the admissibility of statements made during custodial interrogation and not the Supreme Court's historic constitutional ruling in Miranda. Second, CCI argued that the Supreme Court should not follow the doctrine of stare decisis and apply the decision of Miranda and the subsequent decisions that followed Miranda. Ultimately, the Supreme Court ruled in a 7-2 decision written by Justice Rehnquist that the Miranda decision was a constitutional decision of the Court and, therefore, a statute could not overrule it. The Court further decided not to overrule Miranda on stare decisis grounds.

CCI's arguments are troubling. When asked in written questions by Senator Durbin whether he played any role in CCI's involvement in the Dickerson case, Estrada admitted that he voted as a board member in favor of CCI filing an amicus brief in the case. In his explanation, he indicated that in his opinion the case involved primarily the question of the constitutionality of an Act of Congress. When asked further by Senator Durbin whether he would apply the Miranda ruling of the Supreme Court to cases that came before him, he indicated he would. Nevertheless, Estrada's support of the CCI brief in Dickerson remains extremely troubling.

Estrada's past positions lead us to conclude that he would not recognize the due process rights of Latinos, including Latino immigrants.

In the case in which Estrada filed a brief supporting Chicago's unconstitutional anti-loitering ordinance, he argued for a narrow interpretation of the due process clause in the Constitution. The Illinois Supreme Court had held the ordinance invalid because "the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." City of Chicago v. Morales, 177 Ill.2d 440, 447 (1997). Estrada argued that the Illinois Supreme Court failed to follow the proper analytical framework. For Estrada, the court "got the analysis exactly backwards by grounding its decision on 'substantive due process' while at the same time declining to address respondents' claims under the First, Fourth, and Eighth Amendments." See Brief of Amici Curiae U.S. Conference of Mayors In Support of Petitioner, 1997 U.S. Briefs 1121, City of Chicago v. Morales, 527 U.S. 41 (1999). According to Estrada, substantive due process rights--such as a general right to travel, right to locomotion, right to freedom of movement, and right to associate with others-- are residual doctrines that should not be invoked unless claims under any applicable provision of the Bill of Rights are examined first. The rights at stake, if any, according to Estrada, were the "right" to join a criminal gang, or the right to congregate on public streets with members of a criminal gang. By trivializing the rights, Estrada's views raise serious concerns about the reach of the due process clause.

Alternatively, even if the court needed to reach the substantive due process analysis, Estrada argued that the ordinance was not either vague, as it offered the public fair notice, nor overbroad as it did not reach constitutionally protected conduct and implementing enforcement guidelines prevented the police from overreaching law enforcement practices. The U.S. Supreme Court ultimately affirmed the Illinois Supreme Court's decision holding the City Ordinance to be unconstitutionally vague.

During Estrada's Senate hearing, Senator Russ Feingold (D-WI) brought up the concerns he had that the Chicago city ordinance led to the arrest of over 42,000 people in three years. Senator Feingold said that the ordinance sent the youth in the community the message that chatting on a street corner could lead to their arrest, and that the language of the ordinance did "not discourage arbitrary, discriminatory enforcement" as the Illinois Supreme Court found. Despite all of this information, Estrada continued to defend the Chicago ordinance and expressed no concerns whatsoever with the potential for law enforcement abuse of discretion. He mostly defended his position on the grounds that there was some support from minorities for the ordinance.

In other cases in which he was involved either directly or as a board member of CCI, he was on the side of limited recognition of due process rights. See NAACP v. City of Annapolis, 133 F.Supp.2d 795 (2001) (anti-loitering ordinance); Montana v. Egelhoff, 518 U.S. 37 (1996) (admissibility of evidence of involuntary intoxication); Connecticut Dept. of Public Safety v. Doe, 2002 U.S. LEXIS 3594, cert. granted, (U.S. May 20, 2002) (CCI brief in sex offender registry case).

Congress has tried to strip away many due process rights of immigrants. Some of this is apparent in the laws Congress passed in 1996, but it continued even further in the latest round of anti-terrorism legislation. The courts are the one refuge for immigrants to restore some of the due process rights guaranteed under the U.S. Constitution. Estrada's consistent view that the due process clause should be narrowly interpreted causes us to conclude that he would not recognize the full scope of due process rights that Latinos, including Latino immigrants, deserve in this country.

Estrada would not fairly review Latino allegations of racial profiling by law enforcement.

Estrada took on cases for free on the side of cities which had passed local ordinances that were designed to fight gangs and crime by allowing law enforcement to target individuals who were loitering in public spaces. In these cases, Latino and African-American plaintiffs challenged the ordinances on a number of bases. One area of concern raised in the cases by minorities was that these ordinances encouraged and/or resulted in law enforcement officials targeting minorities on the basis of race. When these concerns were raised, Estrada consistently downplayed and denied the existence of the use of racial profiling by law enforcement.

Estrada appeared before a live audience in a program aired on NPR to discuss the case of City of Chicago v. Morales, 527 U.S. 41 (1999). The American Civil Liberties Union (ACLU) represented the interests of the 66 plaintiffs who were arrested under the city's ordinance and who challenged the ordinance. Of the 66 plaintiffs, 60 were black or Hispanic. When audience members peppered Estrada with questions as to the likelihood of the ordinance being used as a tool to racial profile black and Hispanic males, Estrada reluctantly conceded to such points but proceeded to greatly emphasize it was black and Hispanic neighborhoods that received greatest benefit from such an imbalanced enforcement. He stated, "[I]f you mean by the effects whether more members of minority neighborhoods are taken into custody under the law, the answer is probably yes." Transcript, Gang Loitering: Harvey Grossman Debates Miguel Estrada, NPR's Justice Talking (Apr. 26, 1999). But, he pressed on by emphasizing, "It is also true that most of the people that get the benefit of the law are the neighbors of the folks who are taken into custody and that therefore in terms of the many facts of the law, they go also to the minority communities." Id.

Estrada offered up the following, "For what it's worth, I have been stopped on a few occasions by officers while in my car, and I have to report that they have been unfailingly civil and courteous to me and I have never experienced anything that I could reasonably complain of as being disproportionate to the fact that I went through a yellow light, or something like that." Id. When the host of the program asked Estrada whether he was "troubled at all by the fact that it is primarily ... Latinos, African Americans, that are being rounded up," he answered, "I guess I take exception somewhat . . . with the term "rounded up." It seems to me that if you take the law as stating a standard of conduct that is as binding on the White residents as it is on the Hispanic residents, I ought not to take exception to the fact that those who do not comply with the standard of conduct are taken into custody whatever their ethnic background may be." Id.

In responding to audience questions, Estrada stated, "[T]here is no question in my mind that the country has changed quite a great deal in the last 30 or 40 years and that we have somewhat fewer worries now about interracial interactions between members of a White PD and minority members of the public. . . . We have laws that deal with people who mishandle members of minority groups. And if someone has engaged in unlawful and abusive conduct, we have laws that will vindicate that. What we are not to do is give up the entire enterprise of having laws that govern the conduct of everyone when we, as a people, think that it is a good idea to have those laws. That makes no sense to me."

When asked questions regarding racial profiling by Senator Feingold at the hearing, Estrada did not change his responses in any significant way from the arguments he made previously in this area. When Senator Feingold asked Estrada if he thought that racial profiling was no longer an issue in our country, Estrada at first responded no; however, he suggested that the anti-loitering ordinance law of Chicago received significant support from minority communities. This appears to be Estrada's "evidence" of why the anti-loitering ordinance bills are not discriminatory.

All of Estrada's arguments and statements taken together are proof that he would not be fair to those Latinos who would appear before him claiming that they were the victims of illegal racial profiling.

Estrada remains too much of an unknown on a wide array of immigration matters facing the Latino community.

While Estrada has not worked directly on immigration matters, his record in the criminal law area provides some troubling signs as to where he might be on at least a number of immigration issues. Prior to the terrorist attacks on 9/11, both local law enforcement and the Immigration Naturalization Service (INS) engaged in practices racially targeting Latino immigrants. For example, in Rogers, Arkansas, local police targeted Latinos driving cars, pulling them over, and asking to search their cars as well as asking for proof of immigration status, despite the lack of a sufficient legal basis to conduct such searches and seizures. In addition, in New York City, information obtained from the INS revealed that the decisions to raid certain work places were based on improper racial targeting. For example, the INS chose work sites where Spanish music was playing or where the workers appeared to be dressed in clothing more typical of Central America than the United States. After 9/11, the use of questionable law enforcement tactics has only increased.

Estrada traditionally has argued that law enforcement operates with objective standards and makes its decisions based on objective facts, even when there was evidence of racial profiling. In the Annapolis case, Estrada argued in the brief that "practically all arrests-under any statute-are based on an officer's conclusion that the objective facts establish probable cause to believe that a person has committed the crime in question (including any intent requirement)." See City of Annapolis' Reply Memorandum in Support of Motion for Summary Judgment and Opposition to the Plaintiff's Cross-Motion for Summary Judgment, NAACP v. City of Annapolis, 133 F.Supp.2d 795 (2001). According to Estrada, an officer could not enforce the Ordinance unless he could "point to objective facts indicating that a person's purpose is to engage in drug-trafficking" and should "misperception of the objective facts" occur leading to a needless arrest the proper remedy would be for a court to acquit. Id. So instead of trying to prevent the racial profiling tactics, Estrada's remedy for immigrants who are detained after being targeted because of their race or national origin is to put them through the criminal justice process where they must prove their innocence in court. Unfortunately, the rights of immigrants in immigration court are even more limited than the rights of criminal defendants. Once detained under illegal methods, many will be deported without recourse.

Estrada said nothing during his hearing or in his written responses which address these concerns, so our concerns remain.

Estrada would most likely retain his personal support for the "broken windows theory," which has led to troubling police practices in Latino and other minority communities, and be predisposed against our community's civil rights protections.

Estrada has served on the national board of CCI since 1998. He has explained that CCI follows the ideas of George Kelling regarding the use of public spaces and the "broken windows theory." Estrada stated that some who argue on the other side of the issue take the broadest view of civil liberties and civil rights. Based on research we did on the "broken windows theory," we conclude that those who advocate for this theory of how to conduct law enforcement are arguing often for the narrowest view of civil rights and liberties. Since Estrada associates himself with CCI and the broken windows theory, we are deeply concerned about how that will affect his view of police practices in Latino urban areas.

On CCI's Board are two prominent, and controversial, proponents of the "broken windows theory" of law enforcement - George E. Kelling, the professor who originally articulated the "broken windows theory," and William Bratton, former-New York City Police Commissioner under Mayor Rudolph Giuliani, (now the head of the Los Angeles Police Department), who implemented an enforcement priority within the New York Police Department (NYPD) based on the theory.

In 1982, criminologists James Q. Wilson and George E. Kelling published an article in Atlantic Monthly that argued a connection between disorderly behavior, citizen fear, and crime. See James Q. Wilson and George L. Kelling, Broken Windows: the Police and Neighborhood Safety, Atlantic Monthly, Mar. 1982. Essentially, Kelling argued that by ignoring broken windows, community members signaled that nobody cared about their neighborhoods. Such outward neglect would lead to more windows being broken, and damage would spread to other areas of the community. Kelling's theory has been repeatedly cited throughout the years as establishing a connection between low-level crime and serious crime. But see Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291 (1998) (arguing that reducing minor disorder in communities does not deter more serious crime).

Since 1982, the broken windows theory has inspired several types of policing practices - community policing, order-maintenance policing, quality-of-life enforcement, zero tolerance policing, and computer crime statistic deployment policing (a.k.a. CompStat) - moving police deployment decisions away from the traditional emphasis on serious crime such as homicide, rape, robbery, assault to less serious crime such as vandalism, panhandling, loitering, and graffiti. Some of these derivative policing practices, such as community policing, have been welcome in many marginalized communities because they operate to physically place police officers back in the community to interact and respond to the law enforcement needs as articulated by the residents of a particular neighborhoods.

Unfortunately, the vast majority of the other practices - order-maintenance, quality-of-life, zero tolerance, and CompStat enforcement priorities - have in application had a greater impact on communities of color, immigrant communities, the poor, youth, and the homeless. Deployment decisions for these practices are centralized by police command officials to seek vigorous enforcement of minor offenses in the name of what communities need or want. In some cases, particularly CompStat, arrest data, instead of community input, drive deployment decisions of sending roving troops of police, unknown to the community residents, into those communities for the sole purpose of driving up certain crime arrest figures. Essentially, according to "broken windows theory" proponents, as crime arrests for minor offenses go up, residents feel safer, thereby justifying the stepped-up enforcement drives.

Kelling has continued to publish in support of "broken windows theory" despite growing criticism. While he has conceded that "order maintenance has the potential for abuse" and that "[v]agrancy and loitering laws, for example, have been used to deny minorities their rights and to abuse citizens, especially African-Americans," he has minimized those problems. See, e.g., George L. Kelling, National Institute for Justice Research Report: "Broken Windows" and Police Discretion 1 (1999) (avoiding discussion by minimizing such biased policing as not "literal police work").

In 1994, then-Police Commissioner Bratton instituted a quality-of-life plan in New York City shortly after taking office. Bratton instituted a reorganization that decentralized police deployment decisions to borough and precinct commanders. In theory, these local police heads would have the latitude to interact with the community and respond to their articulated concerns. In application, the deployment plan was another beast entirely. Instead of rewarding local commanders for community responsiveness, they were made periodically to account for arrest statistics, creating a perverse incentive to drive up arrests for "broken window" violations to keep their jobs. Additionally, Bratton introduced CompStat (computer driven crime mapping programs) to guide deployment of specialized enforcement units into particular boroughs and precincts to drive up arrest rates. By 1999, CompStat driven deployment of specialized units blew up when members of the Street Crimes Unit shot and killed an unarmed Guinean immigrant named Amadou Diallou. Finally, many have criticized Bratton's reliance on quality-of-life enforcement priorities as facilitating and pressuring patrol officers to engage in racial profiling subjecting young black and Latino men to stop-and-frisk searches under the pretext of quality-of-life enforcement when actually they were unreasonably suspected of more serious offenses without the requisite cause to detain and investigate.

Given Estrada's unqualified endorsement of the police practices supported by the broken windows theory and his failure to indicate any counter-balancing views at his hearing or in his written responses, Estrada would not likely review fairly claims of either racial profiling or abuse of discretion by law enforcement.

Estrada would probably question the role that Latino non-profit organizations play in representing the interests of the Latino community.

In the City of Annapolis case, one in which Estrada defended the City of Annapolis' anti-loitering ordinance pro bono, he challenged whether the NAACP actually represented the black community's interests. If he does not even recognize the NAACP's ability to represent blacks, would he recognize Latino groups' standing in court to represent Latinos? His arguments in this case suggest he probably would not.

In arguing the NAACP failed to meet the legal standing requirement to represent blacks who were targeted under the ordinance, Estrada argued that the NAACP's challenge to the anti-loitering ordinance was not "germane" to the organization's purpose of combating racial discrimination. First, Estrada argued that there was insufficient evidence available to prove that African-Americans are disproportionately affected by new criminal laws, even overbroad and vague ones aimed at the drug trade, loitering or both. Estrada challenged the NAACP's evidence of disproportionate impact as dated and unrelated to Annapolis. Furthermore, Estrada argued that the NAACP's evidence that the demographics of the areas which Annapolis requested to be designated as Drug-Loitering Free Zones under the City's ordinance were mostly African-American does not go to invidious racial discrimination, but instead goes to benefits conferred -- in terms of less-dangerous streets and significantly increased quality of urban life -- to these African-American communities. Ultimately, the U.S. District Court for the District of Maryland rejected Estrada's arguments that the ordinance did not raise issues germane to the purpose of the NAACP, and further found the totality of arrest statistics and the geography of ordinance designations "sufficient to prove that the ordinance may disproportionately impact black residents."

During his hearing, Estrada was given the opportunity to address this area of concern. Senator Ted Kennedy (D-MA) told Estrada that he had difficulty understanding why Estrada thought the NAACP would not have standing. In response, Estrada reiterated the same argument he had made in his brief, namely, that the anti-loitering laws were not racist laws; therefore, the case was not "germane" to the NAACP's mission of fighting discrimination. Estrada's continued belief expressed at the hearing that the NAACP should not have been granted standing in the case provides proof that he would likely question the standing of Latino organizations to bring cases affecting the Latino community.

Estrada would most likely always find that government affirmative action programs fail to meet the standard of serving a compelling interest.

In meetings where Estrada has made himself available to answer questions since his nomination, he has made statements about affirmative action that call into question whether he would find a compelling interest to justify such programs under the Supreme Court's standard. Estrada indicated that he had not raised the issue of diversity in places where he has worked. When asked whether he would hire Hispanic clerks as a Circuit Court judge, he responded that he would not set out to hire people of his same background; it would be a question of whether he hit if off well with the applicant.

Even before he was nominated, he questioned the need for affirmative action programs. In 1998, USA Today wrote an article on the lack of minority law clerks at the Supreme Court. USA Today interviewed Estrada, noting that only four Hispanics had ever clerked on the Supreme Court. Estrada "dismisse[d] the statistics showing little representation of minorities. '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.'" When asked specifically about this article by Senator Kennedy in written questions, he explained that the "trends of society" meant that the Justices hire lawyers who clerk for distinguished appellate judges, who in turn "hire only the most accomplished law students from our country's most elite institutions;" therefore, the issue was a broader problem. He did not directly answer the subsequent related question as to whether he thought that discrimination might play a factor in the underrepresentation.

When Senator Patrick Leahy (D-VT) asked Estrada at his hearing whether diversity is a factor that an employer or school could legally take into account when making decisions, Estrada only responded that he was aware there was a split in the circuit courts on the issue and he felt he could not answer the question as it might come before him as a sitting judge. When asked by Senator Durbin in written questions if he would uphold the Supreme Court's decision in Bakke, he replied that there was no majority opinion in the case, the lower courts are divided, and because the matter might come before him, he would not state his views on the issue.

When questioned by Senator Leahy during his hearing about whether there was a hiring or selection process that took race or gender into account that could pass the Adarand (Adarand Constructors, Inc. v. Peņa, 515 U.S. 200 (1995)) strict scrutiny test, Estrada said he was unwilling to give out a hypothetical. Instead, he reiterated the Adarand test and indicated that there would need to be a very fact-bound individual assessment of the process to determine if the test was met. When asked by Senator Kennedy in written questions about his views on affirmative action, he indicated that any policy view he has about affirmative action as a private citizen would not play a role in his decision as a judge; rather, he would follow the Supreme Court decision of Adarand. When further asked whether he thought the D.C. Circuit's finding a portion of the FCC's Equal Employment Opportunity policy to be unconstitutional in MD/DC/DE Broadcasters Assoc. v. FCC, 236 F.3d 13 (D.C. Cir. 2001) was correctly decided, he again answered he had not reviewed the materials sufficiently to answer and that he would follow Adarand.

When asked by Senator Kennedy in written questions how he felt about President Bush publicizing his Hispanic origin, Estrada responded, in part, that the "President ... make[s] clear to all that ours is a Nation that endeavors to value achievement and skill without regard to race or creed."

The few statements we have from Estrada as to his views on affirmative action suggest that he would have a predisposition to not find a compelling interest in any government affirmative action program, and he did not dispel that belief in the various opportunities he had the chance to do so.

It is unclear whether Estrada would provide a fair day in court for low-income Latino consumers.

Since leaving the federal government, Estrada has worked for a major law firm in Washington, D.C. representing corporate interests when they come into conflict with the interests of ordinary citizens. For example, Estrada represented the interests of Novartis Holding AG (Novartis), the makers and marketers of Doan's over-the-counter back pain remedies. See Novartis Corp. v. Federal Trade Commission, 223 F.3d 783 (D.C. Cir. 2000). The Federal Trade Commission (FTC) had ruled that Novartis was guilty of deceptive advertising based on the finding that their Doan's ads contained an unsubstantiated implied claim of superior efficacy prohibited under the Federal Trade Commission Act. In the case, Estrada and his law firm conceded that the ads made implied claims and/or that they were likely to deceive, but argued that they were not material to a consumer's point of purchase decision-making. Estrada argued this despite the fact that in cases of claims dealing with health, there is a presumption that the advertising claim in question is material. Ultimately, the D.C. Circuit Court, which heard the case, ruled that the deceptive advertising was material to the consumer's decision to purchase the product. Ironically, Estrada pressed a First Amendment argument on behalf of his corporate client.

In addition, Estrada is currently involved in multi-district litigation involving subscribers (patients) and providers (doctors) who have filed suit against various insurance companies that provide managed care under such laws as RICO, ERISA, common law conspiracy, quantum meruit, state prompt payment statutes, etc. Estrada is representing neither the patients nor the doctors in the case, but rather one of the managed care companies, AETNA, Inc. See In Re: Managed Care Litigation, 2001 U.S. Dist. LEXIS 14501 (S.D. Fla. 2001); In Re: Managed Care Litigation, 150 F. Supp.2d 1330 (S.D. Fla. 2001); In Re: Managed Care Litigation, 143 F.Supp.2d 1371 (S.D. Fla. 2001); In Re: Managed Care Litigation, 135 F. Supp. 2d 1253 (S.D. Fla. 2001); In Re: Managed Care Litigation, 132 F. Supp.2d 989 (S.D. Fla. 2000).

Unfortunately, Latinos continue to be overrepresented in the class of individuals who are the victims of consumer fraud and who have limited access to health care, in part because they have no means to control the rocketing costs of health care. While most never seek recourse for the wrongs against them, the few who have the courage to do so in the justice system deserve to bring their claims before someone who will be able to provide the full protection allowed under law. It is not clear from Estrada's record whether he would do so. He did not take the opportunity to address this issue at his hearing.

Estrada might not protect the labor and employment rights of Latino immigrant workers.

The rights of Latino immigrant workers, particularly undocumented workers, hang in the balance. One judge's vote can determine the outcome. The case of one undocumented worker is a prime example of how important every appointment is, particularly to the D.C. Circuit, which handles the review of federal agency action by such agencies as the National Labor Relations Board and the Occupational Safety and Health Administration. The case involved a Latino undocumented worker who joined other workers on the job to form a union. The employer responded to the union-organizing by firing the workers. The National Labor Relations Board (NLRB) found that the employer had violated the rights of the workers under the National Labor Relations Act. During the remedy stage of the case, one of the workers was found to be undocumented and the question arose whether the worker could receive certain backpay damages.

All of the judges on the D.C. Circuit, which reviewed the NLRB decision, sat in on the case and ruled five votes to four that the worker was entitled to the challenged backpay damages. See Hoffman Plastic Compounds, Inc. v. NLRB, 237 F.3d 639 (D.C. Cir. 2001) (5-4 decision). Then the case was heard by the Supreme Court which reversed the D.C. Circuit's opinion in a decision of five votes to four. See Hoffman Plastic Compounds, Inc. v. NLRB, 2002 WL 459438 (Mar. 27, 2002) (5-4 decision).

As organizations representing the Latino community, we have grave concerns about where Estrada would come out on an issue such as that presented in the Hoffman case. The few protections immigrant workers have are at risk and the D.C. Circuit will play a key role in deciding those rights in the future. When asked specifically by Senator Kennedy in written questions whether he would have agreed with the D.C. Circuit's ruling or the Supreme Court's ruling, Estrada responded that he was not in a position to answer that question since he had not read the briefs in the case, was not present at the oral argument or independently researched the issue. He provided no assurance that he would fairly consider the rights of the workers in this type of case.

Estrada could very well compromise the rights of Latino voters under the Voting Rights Act.

Section 5 of the Voting Rights Act of 1965 (VRA) requires that certain states and jurisdictions that have a history of excluding minority voters obtain preclearance for any voting change they wish to implement either from the U.S. Department of Justice or the D.C. District Court. It is the job of the Department of Justice or the D.C. District Court to determine whether the change will have a negative effect on the minority community in that jurisdiction. All changes in voting must be reviewed, including those changes as small as the change in a polling location, or major changes, such as new redistricting plans. When Section 5 claims are reviewed by the D.C. District Court, they are heard by a panel of three judges, consisting of one D.C. Circuit judge and two D.C. District court judges. Not only do D.C. Circuit judges have a significant role in reviewing the voting changes, they can serve as the presiding judge in cases, thus increasing their influence in the outcome of voting cases. Under the VRA, Section 5 cases decided by the D.C. District Court are appealable directly to the Supreme Court.

Latinos are still struggling to protect and promote their voting rights. The potential role that Estrada could play in interpreting Latino rights under the VRA cause us serious concerns. While we were not able to find in Estrada's record experience directly on point, some of his work suggests that he may not be fair to Latino community interests. For example, Estrada's views in the City of Annapolis case suggest that he may not recognize claims of disproportionate negative impact, or disparate impact, by minority communities. See City of Annapolis' Reply Memorandum in Support of Motion for Summary Judgement and Opposition to the Plaintiff's Cross-Motion for Summary Judgement, NAACP v. City of Annapolis, 133 F.Supp.2d 795 (D. Md. 2001). In that case, the NAACP argued that the City's anti-loitering ordinance disproportionately affected the black community. Estrada argued against the NAACP, questioning the NAACP's evidence, including the NAACP's evidence that the demographic areas which Annapolis requested to be designated under the ordinance were mostly African-American.

When asked by Senator Leahy in his hearing whether there is a role for statistical evidence of discriminatory impact when trying to establish a pattern or practice case, Estrada only responded that he was aware there was a line of cases addressing the issue but did not comment further than that. In voting cases, we often argue the disproportionate negative impact that voting policies or practices will have on Latinos. Our serious concerns that Estrada may not fairly review these allegations if they were to come before him remain after his hearing.

Conclusion

In this memorandum, we reviewed the major areas of concern that we had before Estrada's hearing. After attending his hearing, reviewing the transcript of the hearing, and reviewing all written responses submitted by Estrada, we conclude that Estrada failed to assuage our serious concerns. He chose one of two paths consistently at his hearing and in his written responses. He chose either to confirm that he held the same views and positions which caused us concern in the first place; or he chose not to reveal where his current views or positions might be different than what we concluded from his limited public record.

For example, when asked at his hearing by Senator John Edwards (D-NC) if he was a "strict constructionist," Estrada answered that he was a "fair constructionist." In his written follow-up questions, Senator Durbin asked Estrada which of the current Justices on the Supreme Court he would describe as strict constructionists and which he would describe as fair constructionists. Estrada's answer concluded that he would characterize "every member of the current Court as a 'fair constructionist.'" By making no distinction among the Justices, the term Estrada uses becomes meaningless. When Senator Charles Schumer (D-NY) asked Estrada to name three cases of the Supreme Court decided in the last 40 years of which he is most critical (disagrees with), Estrada said he was reluctant to do so and, further, was not in a position to do so since he had not seen all the materials in the cases, heard the oral arguments, researched the issues and deliberated on the cases. He responded to this and many questions with non-answers.