Posted on September 19, 2003

by

Daniel Clark

After twenty-eight months, two changes of power in the Senate, one pseudo-filibuster, six failed cloture votes, and countless baseless attacks against him, Miguel Estrada has finally given up. The Honduran-born former Justice Department official withdrew himself from consideration for the District of Columbia Circuit Court on September 4^th. This concession should not be taken as a reflection of Estrada's character, however, because he would be sitting on the federal bench today, if only the Senate Republicans possessed a fraction of his fortitude.

The Republican Party controlled the evenly divided Senate when Estrada was nominated in May of 2001, because of Vice President Cheney's tie-breaking vote. Almost immediately thereafter, Sen. Jim Jeffords of Vermont left the GOP and registered as an Independent, giving the Democrats a 50-49 edge in the Senate, and a 10-9 advantage in the Judiciary Committee. Estrada's confirmation was a virtual impossibility during that time, but that situation should have changed after the Republican victory in the 2002 elections. It didn't.

Estrada's nomination was moved to the full Senate by the new Republican-controlled Judiciary Committee, on a party-line 10-9 vote on January 30^th of this year. Nevertheless, it had not been brought up for a vote on the Senate floor in more than seven months since. The reason for this, ostensibly, is a Democrat filibuster. The reality, though, is that the Republicans could easily and swiftly have defeated this tactic, if only they'd had the stomach for the fight.

There actually was no filibuster against Miguel Estrada. In fact, there hasn't been a real filibuster against anything for decades, partly because of changes to procedural rules that made it more difficult to sustain one.

Senate Rule XIX, which sets guidelines for debate and decorum, says in section 1(a) that "No Senator shall interrupt another Senator in debate without his consent." This means that an individual senator, once he is recognized, is able to stall debate for as long as he can remain speaking. If he is acting alone, this tactic is useful only as a protest. Eventually, he will grow tired, lose his voice, or need to relieve himself, at which time the presiding officer will recognize another senator, and the filibuster will be over.

The challenge comes when several senators join a filibuster, so one of them can yield to another when tired, thereby multiplying the duration. This tests the resolve of the majority, because they must maintain a quorum long enough to outlast the filibustering senators. If a majority of the senators are not present at a quorum call, the Senate is adjourned. This allows the senators conducting the filibuster to eat and rest, and prepare to resume the filibuster the next time the same issue comes to the floor.

In 1917, a group of Republican senators filibustered the Treaty of Versailles, chiefly in opposition to its creation of the League of Nations. At the behest of President Woodrow Wilson, the Democrats, then in the majority, amended the Senate rules to allow the majority to vote an end to a filibuster. This procedure, known as "cloture," required the support of two-thirds of the senators to end debate and bring a bill to a vote. Ironically, it was under Republican control of the Senate two years later that this rule was used to bring up a vote on the treaty, which was then defeated.

This rule was amended in 1975, reducing the number to three-fifths -- or from 67 to 60 senators -- needed to invoke cloture. This was done in reaction to Southern Democrats' repeated filibusters of civil rights legislation over the previous two decades.

This year, Senate Majority Leader Bill Frist (R, Tenn.) has floated the idea of changing the rule again, so that when a judicial nomination was filibustered, it would only take a simple majority of 51 to invoke cloture. This would effectively end the tactic of filibustering to block judicial nominees, since any nominee who had enough support for confirmation would be certain to receive an up-or-down vote in the full Senate. Supporters of this idea argue that a filibuster of a judicial nomination violates the "advice and consent" clause of Article II Section 2 of the Constitution.

The relevant paragraph of that section says that the president "shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur, and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

This sets a different standard for treaties than for presidential appointments. While the original 67-vote cloture rule logically followed the Constitution's requirement of a two-thirds majority approval for treaties, there is no constitutional demand for a 60-40 majority to approve judges. The 60-vote cloture rule was arbitrary, and it was passed by invoking the majority's power to write the rules of the Senate. Sen. Frist could have reduced that number to 51 by using the same method, as he's threatened to do, but he's declined to act on it for so long that Estrada grew tired of waiting for him.

The possibility that the Republicans would use their majority status to rewrite Senate rules is being called the "nuclear option," because it is thought to be a heavy-handed approach to be used only as a last resort. Predictably, they refuse to believe that its time has come.

Never mind that the Democrats are blockading President Bush's judicial nominations as a political tactic, and in the process preventing the Senate from performing its duty as defined in Article II Section 2. Never mind that Senate Minority Leader Tom Daschle (D, S.D) and former Judiciary Committee chairman Patrick Leahy (D, Vt.) are trying to usurp the president's power of appointment, by saying that Bush should consult with them before making an appointment in order to make the confirmation process run more smoothly. Never mind that appointees like Estrada and Priscilla Owen are being left to twist in the wind for years, putting their careers in limbo while left-wing organizations like People for the American Way assault their character. Frist and his Republican colleagues haven't felt inclined to stand up to this campaign, apparently out of fear that they'll be accused of "extremism," and that the Democrats will seek revenge whenever they are back in the majority.

If Senate Republicans are afraid of being criticized for changing the rules, they could still have won Estrada's confirmation by using the rules that already exist, and forcing the Democrats to actually filibuster. Anymore, all the minority in the Senate has to do is threaten a filibuster, and the majority will agree to put the matter aside and get on with other business. When they pick up the issue again at a later date, the minority will say they are continuing the "filibuster," and the vote will put off again. So the majority actually accommodates the obstruction of its own initiative. No wonder nobody trusts elected officials.

If Frist had required the Democrats to filibuster, how long could they have gone on? Definitely not seven months. Not even if Robert Byrd took to the floor to recite an unabridged history of botany. Estrada's nomination was blocked by 45 senators who were willing to participate in the painless gesture of voting no on cloture. Democrat leaders would have to convince 41 of those 45 to take the considerably more serious step of delaying all other Senate business indefinitely, while trying to justify that action to the voters, on the flimsy basis that a Republican president has appointed a conservative judge.

Estrada is just one of many appointees the Democrats have threatened to filibuster. If they were faced with having to do it, they'd be aware that it wouldn't end with Miguel Estrada. They'd have to come right back and expend the same energy to block Priscilla Owen, and Charles Pickering, and Carolyn Kuhl, and Bill Pryor, and many more. They'd never be able to go through with it, and Bill Frist seems to know it.

Back in February, Frist threatened to force the Democrats' hand. "We will stay here all night tonight, and we will stay tomorrow," he said. "If they want to stay through the weekend, we'll stay." Well, the Democrats didn't want to stay, so Frist and the Republicans decided that they really didn't, either. If the Majority Leader had been bluffing, there were some in his party who weren't privy to the strategy. Sen. Jeff Sessions (R, Ala.) called the prospect of an actual filibuster "an event too horrible to contemplate," and added that "we have to assume that reasonable heads will prevail and that somehow the Democrats will back off this extreme policy."

If you're wondering how a weekend-long filibuster could possibly have been the living hell Sessions describes, columnist Bob Novak reported that part of the reason the Republicans caved in on the filibuster threat was that their wives demanded that they take their Presidents' Day weekend recess as scheduled. It's not like there's anything more important at stake, like maybe the future of American jurisprudence, for example.

So why, considering the Senate Republicans' congenital reticence, would the Democrats "back off"? Because their enemies beg them to? Because Estrada's supporters say they are terrified by the thought of a filibuster, so they ask if Senators Daschle, Leahy, Charles Schumer, Ted Kennedy and Hillary Clinton would kindly step aside of their own volition?

Incredibly, Frist himself made this request after Estrada had withdrawn himself. The Senate Majority Leader, who himself could have secured Estrada's position on the bench if only he'd applied a little pressure, actually said, "I am hopeful that the Democrats will realize that this disservice is inexcusable and simply change behavior."

It is Frist, Sessions and their fellow invertebrates who need to "simply change behavior." They can start by standing upright. They seem to believe that as long as they remain passive, then they will be perceived as the "moderate" party, while the Democrats, for having the nerve to act in their own interests, will be seen as "extreme." They complain about how vicious and unfair the Democrats have been toward Estrada, but haven't taken either of the options available that would have defeated them.

Clearly, the Republicans were more interested in having the Democrat "filibuster" as a campaign issue than in having Estrada placed on the federal bench. It's no wonder, then, that Estrada decided to stop playing along. Look at what Republican senators have done for him up until now. Why in the world should he have wanted to create more of them?

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