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.
“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.”