he battle over the federal appeals-court nomination of Miguel Estrada has taken an ominous turn for Republicans, with Democrats beginning an unprecedented filibuster and demanding that President Bush make concessions before they will allow a vote on Estrada's confirmation. At the moment, it appears that Democrats have the 41 votes they need to keep a filibuster going, delay a final vote, and perhaps even kill the nomination.The Democratic hard line came together when party members attended a policy lunch yesterday. After that meeting, Minority Leader Tom Daschle emerged to repeat Democratic objections that Estrada has not given the Senate enough information about his legal views. "The issue is our view that every nominee has an obligation to be forthcoming with information about his positions, with information about his record," Daschle said. "If we get that information, we will let every senator make his or her decision." If not, Daschle said, "We will continue to debate this issue."
More importantly, after the meeting, Daschle, along with Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, sent a letter to President Bush demanding copies of legal position papers written by Estrada when he worked in the Justice Department during the Clinton years. The letter also demanded that Estrada answer more questions from Democrats.
"For the Senate to make an informed decision about Mr. Estrada's nomination, it is essential that we receive the information requested and answers to these basic legal questions," Daschle and Leahy wrote the president. "Specifically we ask: 1) that you instruct the Department of Justice to accommodate the requests for documents immediately so that the hearing process can be completed and the Senate can have a more complete record on which to consider this nomination; and 2) that Mr. Estrada answer the questions that he refused to answer during his Judiciary Committee hearing to allow for a credible review of his judicial philosophy and legal views."
The letter ended, "We would appreciate your personal attention to this matter."
For his part, President Bush responded with a strong statement of support for Estrada. "He has the votes necessary to be confirmed," the president told reporters at the White House Tuesday. "Yet a handful of Democrats in the Senate are playing politics with his nomination, and it's shameful politics." Bush added, "I expect him to get fairer treatment than he's getting from those who are really playing against the spirit of the United States Senate."
Although not surprised by the demands, some Republicans are amazed at the audacity of Democrats to keep making them. As far as the documents are concerned, the Justice Department has maintained that the papers are "highly privileged." While some Democrats might attribute that position to politics, it is supported by all seven living former Solicitors General, who last June sent Leahy a letter saying that "we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the [confirmation] process." The letter was written by Seth Waxman, who served as Solicitor General under President Clinton, and it was signed by not only Waxman but by Walter Dellinger and Drew Days III, who also held the post under Clinton; Kenneth Starr, who held it under the first President Bush; Charles Fried, who was Solicitor General under President Reagan; Robert Bork, who served under President Nixon; and Archibald Cox, who served under President Kennedy.
As for Estrada's alleged refusal to answer questions, Republicans point out that if Democrats were unhappy with his performance at his hearing last September, they could have held another hearing or at least announced their intention to do so. They did not. In addition, it is normal practice for senators who are unsatisfied with a nominee's answers to send the nominee written follow-up questions after a hearing. Nominees take such questions very seriously and take care to answer promptly. But in the case of Estrada, only two of the ten Democrats then on the Judiciary Committee sent follow-up questions. New York Sen. Charles Schumer, who has complained loudly that Estrada has not answered questions, did not bother to send Estrada any follow-up queries. Now Schumer cites the allegedly unanswered questions about Estrada as a reason for opposing the nomination.
Republicans are pledging to stand firmly behind Estrada, and they vow to debate the nomination for as long as it takes to win. Tuesday afternoon, Majority Leader Bill Frist said, "We're willing to stay today, tomorrow, tomorrow night, the next day, the next night, possibly Saturday, possibly into the recess." Frist warned Democrats that a filibuster would have "dramatic political fallout in the eyes of the American people, Independents, Democrats, and Republicans."
Now the question is: What are the GOP's options? As Frist said, the first plan is to keep talking. It is likely that Republicans will force Democrats to filibuster for progressively longer periods of time, stretching into the President's Day recess, which is scheduled for next week. All the while, Republicans will be working to find the support of enough Democrats to stop the filibuster. Sixty votes are needed. All 51 Republicans support Estrada, and three Democrats Ben Nelson, Zell Miller, and John Breaux have publicly said they will vote for him. That means Republicans need six more Democrats to end the standoff.
If Republicans believe they have enough support, they could force a vote on cloture, which would cut off debate and pave the way for a final vote on Estrada's confirmation. But so far Republicans are adamantly opposed to a cloture vote. They cite two reasons, one practical, the other principled.
"The first reason is we don't know if we have the 60 votes yet," says one Republican. "We're getting there, but we don't have it yet." The second reason, the Republican explains, "is that we don't want to get into the practice that any time you have a 'controversial' nomination, you have to have 60 votes to confirm. We don't want to concede that point."
On the other hand, Republicans realize that there is an argument to be made for calling a cloture vote at some point as the filibuster drags on, even if Republicans are unable to collect enough Democratic support to win. A roll-call vote would force Democrats to stand up one-by-one, by name, in opposition to allowing a confirmation vote for Estrada. "We need to get these Democrats personally on the record about this," one Republican says, "with a roll call vote to put up or shut up."