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.
When the president called, Enrique wanted to cry:
"What my mother said will finally come true!"
He never imagined he would be betrayed.
But two wicked senators were against him.
"You will never be a federal judge," they said.
"We will not allow it."
The senators did not listen to the town
And ignored the people.
Now I say good-bye, singing liberation . . .
(From the CD El corrido de Enrique Moreno, by Margarito Rodriguez; translated from the Spanish.)
Along the border, people about whom folk ballads called corridos are written generally meet two requirements: (1) their lives are in some way legendary, and (2) they are dead. corridos are written about heroes like Pancho Villa. The fact that a plaintiffs lawyer named Enrique Moreno—who is quite alive and working in downtown El Paso—is the subject of his own corrido, complete with misty-eyed poetizing about betrayal and liberation, is a measure of just how distressed El Pasoans have become over his rejection as President Clinton's nominee to the United States Court of Appeals for the Fifth Circuit. The corrido, which is now circulating in El Paso, is part of the paroxysm of civic anger and wounded racial pride that was touched off in May when Senators Phil Gramm and Kay Bailey Hutchison formally blocked Moreno's appointment. What appalled the community—from ponytailed, folk-singing, grassroots activists like attorney Margarito Rodriguez to Republican judges like Jose Troche and business leaders like Wells Fargo bank chairman Jim R. Phillips—was the notion, expressed in a letter from Gramm and Hutchison to Senate Judiciary Committee chairman Orrin Hatch, that Moreno was somehow unqualified for the position. The letter, dated May 5, stated, "Mr. Moreno simply had not achieved the level of experience necessary to be fully engaged and effective on a court one notch below the United States Supreme Court."
It was a remarkable and even startling assertion, given the background of the 44-year-old lawyer. He was, by all usual standards of measurement, impeccably qualified. He had received the American Bar Association's highest endorsement. He was supported by El Paso congressman Silvestre Reyes and endorsed by the Congressional Hispanic Caucus, the El Paso Bar Association, the American Board of Trial Advocates, the local district and county attorneys, and the sheriff and the chief of police. Though Moreno had never worked as a judge, neither had seven of the fourteen members currently on the Fifth Circuit Court of Appeals. And four of the nine judges appointed by Republicans had fewer years of legal experience than Moreno when they were appointed. Moreno had received support from practically the entire community in El Paso, Republicans and Democrats, Anglos and Latinos alike. And on top of that, Moreno, who had emigrated from Mexico as a child and attended Harvard University and Harvard Law School, was as pure an example of the American dream as you are likely to find in the raw, dun-colored borderlands of West Texas.
The letter from Gramm and Hutchison was, politically speaking, a bizarre and even unnecessary move. While freezing out another party's judicial nominations in a presidential election year is a hallowed political tradition that dates back to Thomas Jefferson's administration, it is usually done passively. Presidential nominees are left to twist slowly in the wind while the senators dither and temporize and purport to be making up their minds while in fact waiting for the election. Because of a long-standing Senate practice, a senator from the nominee's state can block his nomination by withholding a "blue slip" of approval from the Senate Judiciary Committee. Gramm and Hutchison could have done precisely that—that is, nothing at all—a tactic they employed with the previous Hispanic Texan nominated to the Fifth Circuit Court, Jorge Rangel, who finally withdrew his name in disgust two years ago after fifteen months of waiting. But in this case they deliberately chose the more personal—and politically risky—course. They had based their rejection on the recommendations of a private panel of lawyers called the Federal Judicial Advisory Group (FJAG) that Gramm has been using since 1985 to help him screen judicial nominees. In their letter Gramm and Hutchison said that the FJAG had voted 10-5 against Moreno, which suggested to some that a minority candidate had been defeated by secret ballot. In El Paso, which has long been convinced that the rest of the world is plotting to ignore it, give it less money than it deserves, or deny it the respect to which it is entitled, the reaction to the letter was swift and visceral. More than 150 people gathered in protest on the federal courthouse steps to hear state senator Eliot Shapleigh speak, while others took part in a cyber-protest, sending e-mails to Gramm and Hutchison. Congressman Reyes blasted his legislative colleagues in the stark language of someone who has had his feelings hurt, saying, "I cannot express enough disappointment and the degree to which I am shocked and personally outraged." The mayor and the city council of El Paso adopted a resolution urging the senators to reconsider their position. A group led by county attorney José Rodríguez chanted protests during a visit by Kay Bailey Hutchison. Moreno, meanwhile, held his tongue. After announcing, "I have been blessed with the support and encouragement of many people," Moreno has kept his silence and declined to comment for this story.
The controversy quickly spread beyond West Texas. National Hispanic organizations like the Mexican American Legal Defense and Educational Fund and the League of United Latin American Citizens were soon in full cry, denouncing Gramm and Hutchison's letter and what they saw as "the continuing efforts by some in Congress to stonewall Latino nominees." By summer's end newspapers all across Texas had condemned the letter in their editorial pages. Most of the out-of-state critics were, predictably, Democrats, liberals, or from somewhere in the Hispanic community. There were not a lot of Republicans in Illinois losing sleep over this. But in El Paso it was different. As phones rang across the city, the frequent reaction was: "Can you believe what they have done to Enrique?" Many could not, or at least they could not find a reasonable explanation for what had happened. "I felt it was very unfair," says eighteen-year-old Jackie Perez, who made a documentary video about Moreno. "You read the Declaration of Independence, and it says all men are created equal, and here is a really qualified man they say is not qualified. I was kind of disillusioned. Sometimes I give up hope." Even George W. Bush, whom El Pasoans generally think of as a friend and who carried heavily Democratic El Paso County in 1998, refused to intervene. He turned down a request by Texas Monthly for an interview about Moreno's nomination.
Gramm and Hutchison pointed out that Moreno's case was the first time that a majority of the FJAG had voted against a Clinton nominee and that eighteen Clinton nominees to the federal bench, including one Hispanic to the Fifth Circuit Court and two to the federal district court, had been approved by the committee (though not all were interviewed). Gramm, who called Moreno personally to tell him the bad news, remains adamant that Moreno doesn't measure up to a spot on the appeals court. "I consider him a fine man and a good lawyer," Gramm says. "I don't believe he is a great lawyer, and I don't believe he is ready to serve on the Fifth Circuit Court. If he had been nominated to the federal district court, that would have been different. I find Mr. Moreno eminently qualified for the federal [district court]. He is good enough, in my opinion. I told Moreno this is not an all-time judgment; this is just a judgment regarding the Fifth Circuit."
Sentiments like that did not make El Pasoans feel any better about what had happened. "Let's be honest," says state district judge Philip R. Martínez of the 327th District Court in El Paso, "if Phil Gramm said, 'We're going to wait on this because the American people might elect someone else president,' everyone would have lived with that. People here know how politics is played. But once the senator made it personal and said Moreno was unqualified, the community had to question how he reached that conclusion."
Jaime Esparza, the district attorney of El Paso, Hudspeth, and Culberson counties, is less diplomatic. "The reason is just not plausible," he says. "It is the meanest and ugliest thing they could have said about Enrique Moreno." Says state senator Shapleigh, voicing the views of many in El Paso: "Senator Gramm's actions have harmed a good man."
But why? To what end? It was a question that no one seemed to be able to answer. But whether it intended to or not, the Gramm-Hutchison letter raised the possibility that somehow, in some way, Moreno had been the victim of a racial double standard.
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