Judge Not
When Phil Gramm and Kay Bailey Hutchison torpedoed Enrique Moreno's nomination to the Fifth Circuit Court of Appeals, all of El Paso objected—not just to a slight against a Hispanic lawyer but to an attack on the city itself.
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"It resonates with so many people who see themselves in the same position," says El Paso Times editor Dionicio "Don" Flores. "Maybe they were up for a scholarship or a promotion and for some unexplained reason the answer was no. This plays into our worst and darkest fears."
If you drive through El Paso on Interstate 10, you can't help but notice one of the city's most striking landmarks: the copper-smelting plant. The hulking, rust-pocked factory looks like an artifact from the Industrial Revolution and is easily identified by the word ASARCO painted vertically down the side of a brown-brick smokestack. ASARCO stands for American Smelting and Refining Company, a large multinational corporation with operations in the U.S. and Peru. In 1955 ASARCO had another big copper-smelting plant, 235 miles south of the border in Chihuahua City, Mexico. Enrique Moreno's father had a job in that factory, and it was in ASARCO's company medical clinic that Enrique Moreno was born. A year later, in 1956, the family moved north, across the border, in search of a better life. The Morenos' new life started out like the lives of many others who had come north. Unable to speak English, Enrique's father walked the day-labor lines in El Paso's downtown plaza and spent long stretches unemployed. He eventually found work as a carpenter, and Enrique's mother got a job as a seamstress in the Levi Strauss factory. Enrique and his brother and sister grew up happy, without much money, and convinced that they were part of the great American middle class.
Moreno was smart too and an exceptional student. After graduating from Harvard Law School, he took a job with the leading silk-stocking law firm in El Paso, Kemp Smith, doing mostly corporate defense work. He quickly established himself as one of the rising stars in the firm and made partner after five years—the second Mexican American partner in the firm's storied 120-year history. "He was charming and bright and a good lawyer," says Tad R. Smith, the Kemp Smith partner who hired Moreno. "He would have been one of the leaders of the firm if he had wanted to stay."
He didn't. He left to start his own practice, where he pursued mostly employment law—cases involving such issues as wrongful termination, sexual harassment, and violation of civil rights. He made a lot of money. When President Clinton announced Moreno's nomination to the Fifth Circuit Court in September 1999, he had been working as a lawyer for eighteen years. The opening on the Fifth Circuit had been created in 1997 when Texas judge Will Garwood of Austin assumed "senior status," and according to the rules of the court, a Texan would fill the job. Clinton, who has been on a high-profile campaign to appoint minorities to the court, saw a golden opportunity in Moreno, a Hispanic Democrat who had received the American Bar Association's highest rating.
The nomination was huge news in El Paso, where no one had ever before been nominated to a federal appellate court. The U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, is one of thirteen federal appellate courts that sit one rung below the Supreme Court and wield enormous judicial power. They do so because the Supreme Court chooses to hear relatively few cases; that means that, in many cases, rulings by the appellate courts become, de facto and de jure, the law of the land.
No case illustrates the Fifth Circuit Court's raw power as graphically as Hopwood v. Texas. In that case a federal district court in Texas in 1994 ruled that the University of Texas Law School was within its rights when it used race as a factor in its admissions policies. The plaintiffs appealed, and in 1996 the Fifth Circuit Court ruled that the law school could not consider race in deciding whom to admit. Because the Supreme Court refused to hear the case, the appellate court's ruling had the effect of changing the admissions policies of every university in Texas, Louisiana, and Mississippi.
Hopwood also shows why the Fifth Circuit is such a potential political landmine, and why this vacancy has existed for three years in spite of what its chief judge has called an "emergency" situation. Though the landmark ruling had been made by a three-judge panel, the court had later voted whether to hear the Hopwood case en banc, meaning "before the entire court." The vote was tight (8-7) and might well have led to an all-court vote that ended up overturning the case. If Moreno had been confirmed, he would have taken the seat vacated by a conservative—a single vote that might well tip the balance in some cases.
With so much at stake, Reyes and other leaders in El Paso orchestrated a campaign to help Moreno's nomination, and Gramm soon arranged for Moreno to interview with the Federal Judicial Advisory Group, Gramm's thirty-lawyer advisory panel. After interviewing nominees for federal courts, FJAG members each then send their recommendations privately to the senior senator.
According to friends, Moreno was keenly aware that his status as a liberal, a Democrat, and a plaintiffs lawyer might suggest to Republicans like Gramm and Hutchison that he might be that thing dreaded by all good conservatives: a judicial activist. There was also the stark fact that while 48 percent of Clinton's 374 nominees to the federal bench had been minorities or women (versus 28 percent for George Bush and 14 percent for Ronald Reagan), 35 percent of them never made it to the bench, versus a 14 percent failure rate for white males.
Moreno prepared hard for the interview with the committee. "A group of three or four of us met beforehand, and we did a mock committee interview," says state judge Phil Martínez. "We asked about affirmative action, Hopwood, the death penalty, abortion, Catholicism, tort reform. We tried to guess what they were going to say." A strategy emerged: Wary of being branded a judicial activist, Moreno answered the questions but tried to avoid saying what his personal feelings were about those issues. "Personal views are relevant if you are running for the Legislature," says Martínez, who agreed with the strategy, "but not as a judge."
The FJAG was, as it turned out, intensely interested in some of those issues, according to a lawyer who was in the room. But it was most interested in Hopwood v. Texas. It was so interested, in fact, that its members spent roughly a third of the interview asking about it. But according to a source close to the FJAG, Moreno's strategy backfired. Rather than allaying the committee's fears, his reluctance to share his personal views inflamed them. "A big factor was that this was the most evasive interview ever given before the advisory group," said the source. This had the effect of making the conservative members of the committee (it's not known exactly how many are Republicans, but 21 of the 30 contributed to Bush's campaign) even more nervous.
Senator Hutchison's remarks over the summer seem to suggest that Moreno's vagueness at the FJAG interview was her real problem too. In August she was quoted in the Austin American-Statesman saying she opposed Moreno, in part because he "didn't have a written record nor did he answer the questions." This was not what she and Gramm had said in the letter, but it offered a glimpse at the real reason for his rejection. Later, in an interview in El Paso, she elaborated, saying, "Senator Gramm and I felt we did not have enough information."
Meanwhile, the political storm rages on. There is little doubt that Democrats have made hay with Moreno as a political issue. Clinton, who had called the senators' letter "unconscionable" and "unbelievable" and "disgraceful," indeed made so much hay that he prompted a bitter letter from Gramm that read, "your strategy of mixing judicial nominations with partisan hectoring in order to extract contributions is odious, and I urge you to stop." In a move that was timed perhaps to placate the Hispanic community, on September 13 Gramm and Hutchison delivered a blue slip to Clinton nominee Ricardo Morado of San Benito to a federal district court. Once again El Paso felt double-crossed. The senators had promised Reyes that they would not blue slip any more appointments until after the November election, and the appointment to the district court—even if it was for a Hispanic—in no way made up for the open spot on the Fifth Circuit Court. What all of this means for El Paso and Enrique Moreno is unclear. Could Moreno have saved himself by giving more personal answers before the committee? Maybe. And it is possible that, as Gramm suggests, Moreno will one day be appointed to the federal bench, though not if Bush is elected. If Gore is elected, it is likely that he will nominate Moreno to a federal district court and that Gramm and Hutchison will approve. And maybe the net effect of all of this political heartache will be different than what people think.
"I don't believe this is the end for him," says Woody Hunt, the president of Hunt Building and a Republican who supports Moreno. "At the end of the day, he has enhanced his stature in the community. Maybe this will move him toward another form of leadership, and in that sense the community is not a loser but a winner."
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