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The Legend of Miguel Estrada

Neil Lewis writes about the oversized role that conservative bitterness is playing in the fight against Sonia Sotomayor’s confirmation to the Supreme Court. There’s a lot of focused on bruised feelings from the Robert Bork and Clarence Thomas hearings, and some focus on the more important precedent: the extended filibuster of Miguel Estrada, a nominee to the D.C. Circuit Court who was blocked by at first a 51-seat, then a 49-seat, Democratic conference in the Senate.

The Estrada experience comes up all of the time, as a justification for filibusters of Obama nominees (it’s rarely reported how extraordinary it is that the smallest Republican conference since the 1970s can keep on blocking the likes of Dawn Johnsen) and as a straight-up whine that George W. Bush, not Barack Obama, should have broken the barrier by appointing a Hispanic justice.

Neomi Rao, a law professor at George Mason University who worked on judicial nominations for Mr. Bush, said Mr. Bush “should have gotten to name the first Hispanic justice on the court.”

“He really wanted to do so,” Professor Rao said.

But she said that he was largely stymied when Democrats blocked Mr. Estrada from going on the appeals court.

Here’s the thing: Bush didn’t have to appoint Estrada to make a historic move. In 2005, when the Supreme Court seats opened up, Bush could have appointed his then-50-year-old Attorney General Alberto Gonzales. But Bush declined to pick Estrada in part (based on reports from the time) because social conservatives did not believe that Gonzales was a solid vote against abortion rights. The buzz phrase, according to Ramesh Ponnuru, was “Gonzales is Spanish for Souter.” The idea that an ultra-forward-looking President Bush and collection of racially conscious Republicans were denied the opportunity to appoint a Hispanic justice when they lost Estrada is simply bunk.

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