On september 4, 2003, miguel estrada, president g. w. bush's nominee for the District of Columbia Circuit Court of Appeals, withdrew his nomination more than two years after Bush forwarded his name to the Senate for confirmation. Estrada's nomination never received a vote on the Senate floor as supporters of the nomination failed seven times to invoke cloture on his nomination. Democrats objected to allowing the Estrada nomination to come to a vote in the Senate, arguing that he was a “stealth” nominee who had failed to be forthcoming about his views on legal issues, while Senate Republicans countered that Estrada was a brilliant legal mind who would be unaffected by his personal political views. Estrada's withdrawal highlights the change in the judicial nomination and confirmation process from a relatively consensual process in which presidential nominees for lower courts were able to gain Senate approval quickly to a bitter partisan dispute over the ideological composition of the federal judiciary.

The battle over judicial nominees has raged in the past decade at least in part because the House, Senate, and president are not the only institutional players in the policy-making game. Federal judges referee encounters between players in the legislative and executive arenas and help determine the boundaries of each institution's powers. In separation-of-powers cases, for example, judges often draw lines between the two branches and specify the constitutional powers on each side.