he story of Bill Clinton’s latest stalled appointment to the Fifth Circuit Court of Appeals reads a lot like the story of his last appointment to the same bench. Both candidates are Mexican Americans from Texas. Both are Harvard Law School graduates. Both were blocked by Senators Phil Gramm and Kay Bailey Hutchison. And both are what one El Paso C.E.O. described as “success stories” who had once been “the all-American kid with brown skin with a Spanish surname.”
In July 1997, Clinton appointed Jorge Rangel – a Corpus Christi lawyer who was born into a working-class family in nearby Alice – to the Fifth Circuit seat vacated by Judge Will Garwood. Rangel had served as a judge in a state district court and earned the highest possible evaluation from the American Bar Association’s judicial selection committee. He waited eighteen months before requesting his name be withdrawn from consideration. “Patience has its virtues, but it also has its limits,” Rangel wrote the President in October of 1998. After a year and a half, Gramm and Hutchison had succeeded in blocking a hearing by the Senate Judiciary Committee; Rangel decided he had to get on with his legal practice and his life.
In September 1999, Clinton appointed Enrique Moreno to the same vacant seat. Moreno was born in the company clinic of the American Smelting and Refining Company’s Juárez smelting plant, where his father was employed. When he was two, Moreno’s family immigrated to El Paso, where he attended public schools while his father worked as a carpenter and his mother worked as a seamstress. Moreno left El Paso to attend undergraduate and law school at Harvard. After law school, he joined an El Paso law firm, then set up his own law practice. He has practiced law for nineteen years.
Moreno isn’t speaking to the press, but he doesn’t seem inclined to walk away from the nomination. And if he lacks the judicial experience Rangel had, he has a few advantages the Corpus Christi lawyer lacked. One is El Paso, a city closer to the capitals of New Mexico, Colorado, Arizona, and Chihuahua, Mexico, than it is to Austin. The only Texas city in a different time zone than the rest of the state resents the fact that it is often ignored in its own capital. (It was in El Paso where a court of inquiry was set up to examine state funding inequities the city has suffered for decades.) Moreno is the first El Pasoan ever appointed to the federal appellate bench, and El Paso writer Benjamín Saenz described the two Republican Senators’ blocking of Moreno’s appointment as “a slap in the city’s face.” The other factor is George W. Bush – and his presidential campaign. “People here are calling Bush on it,” said Saenz, one of the leaders of an El Paso group working on the Moreno appointment.
El Paso is gearing up for its third public protest of Moreno’s stalled appointment. At the first protest – held in front of the federal courthouse on May 12 – an odd mix of lawyers and public officials turned out to listen to State Senator Eliot Shapleigh, State Representatives Paul Moreno and Norma Chávez, County Judge Jose Rodríguez, representatives of local lawyers’ groups, and novelist Saenz. “There were over 150 people there. There were speakers from the big bar, from the young lawyers, from the women lawyers, from MABA [the Mexican-American Bar Association], the N.A.A.C.P., the county attorney.”
Saenz also complains that Moreno gets no help from the El Paso Times (whose publisher, Don Flores, is a Bush supporter with a standing application for an appointment to a university system regent’s chair in Texas). “The Times carried nothing about [the appeals to Bush] in their non-article,” Saenz said. “And of course, it had no visuals; it didn’t even carry a photograph. All these people in front of the court house and they didn’t even send a photographer – because the photograph would have been damning to Bush.”
The Moreno “movement” has even drawn the support of one state district judge, whose comments, though calculated, are a departure from bench’s standard refusal to comment. “This entire episode once again shows El Paso that we do not have the clout on either a state or national level that other cities in the state have,” State District Judge Philip Martinez told Peggy Fikac of the San Antonio Express-News. “What the senators have done isn’t as much a disservice to El Paso as it is a disservice to the nation.… He was certainly well qualified to play a larger role on a bigger stage.”
The local fight over Moreno’s nomination has begun to look like a “movement” – or a campaign organized around a public policy agenda rather than an appointment to the federal bench. Congressman Silvestre Reyes was drawn into the fight, as an advocate of Moreno. There are weekly events advanced by press releases, like the May 12 demonstration, and a second smaller protest at the public library when Laura Bush was in El Paso for a May 18 book fair event. That protest was followed by a city council resolution, urging the Senate to take up the Moreno nomination. And members of the ad hoc committee to advance the Moreno appointment are now pushing the county commission toward a similar resolution, steadily turning up the heat on the two Republican senators. “The first demonstration was very non-partisan,” said El Paso lawyer Francisco Domínguez. “The protest when Laura Bush was in town was more partisan.” The committee has even paired Saenz, a literary celebrity best known for his novel Carry Me Like Water, with Domínguez, who has connections in the city’s legal and political communities.
The Fifth Circuit Court of Appeals in New Orleans is the arbiter of the decisions of federal district courts in Louisiana, Mississippi, and Texas. It is also one of the most conservative federal appellate courts in the nation. Currently serving on its bench are five Reagan appointees, four (President) Bush appointees, four Clinton appointees, and one Carter appointee. Three of its seats are vacant, and last year Senior Judge Carolyn Dineen King declared a circuit emergency and opened the vacant seats to visiting judges.
By Senate tradition, the Judiciary Committee will not hold hearings until it receives a “blue slip” from each of the state’s senators. Gramm and Hutchison are vetting Clinton’s appointees, and no appointee with a progressive past makes the cut. There was no blue slip for Rangel, who never had a hearing before the committee. Moreno is still waiting.
Both Rangel and Moreno received unanimous “highly qualified” votes from the A.B.A. judicial selection committee that has evaluated all appointments to the federal bench since before Richard Nixon was in the White House. There is no higher ranking. But Gramm has set up his own “advisory committee” of select Texas lawyers (whom he selects) to interview and evaluate appointments to the federal bench. Of the fifteen members of the thirty-one lawyer committee who showed up to interview Moreno, ten voted against him and five voted for him. The committee cited Moreno’s lack of judicial experience as problematic, though seven of the fourteen judges currently serving on the Fifth Circuit never wore judicial robes until they arrived in New Orleans.
“The advisory group that recommended against Mr. Moreno is a select group of individuals handpicked by Senator Phil Gramm,” Al Kauffman wrote in an op-ed piece published in the San Antonio Express-News. “It is fundamentally unfair for the Senate to allow a senator’s reliance on this handpicked, closed-session, decision-making body to stand in the way of the Senate Judiciary Committee and Senate considering Mr. Moreno and his qualifications as the Constitution requires.” Phil Gramm, however, rarely heeds the advice of Kauffman, who is the regional counsel for the Mexican American Legal Defense and Education Fund. And it is Gramm who has slowed the process on Clinton’s appointments to the federal bench. “He’s a hard-edged partisan,” said Dallas Democratic Congressman Martin Frost. Frost described Hutchinson as being “more constructive in getting judges approved.”
Faced with Gramm’s intractability, Moreno’s supporters intend to pressure Bush to take a position the nomination. “A governor doesn’t have to take a position on something like this. A presidential candidate does,” Domínguez said. “He professes a lot of commitment to Hispanics and the border community. He got a lot of mileage out of how well he did in El Paso [in the 1998 election]. We’re now telling him to show us something, don’t just show up here, eat tacos, and say a few words in Spanish.”
Saenz is more direct: “People feel that Bush launched a national campaign by using El Paso. It was very calculated and I think it was very cynical. There is an election coming up. You don’t get to use us. You don’t get to say, ‘We love you Hispanics,’ and then shaft us. We’re not convinced that we’re so loved.”