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Filibustering Miguel

From the February 24, 2003 Dallas Morning News: Democrats, who once abhorred the idea of a judicial appointment filibuster, are out to get Miguel Estrada.

11:00 PM, Feb 24, 2003 • By TERRY EASTLAND
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WHATEVER YOU MAY THINK of the filibuster, Senate rules provide for it. Rule XXII permits senators to block a vote on a given measure, unless no fewer than 60 senators invoke cloture. The filibuster thus requires a supermajority to get something done. That isn't what the Constitution envisions, nor the way business is done in the House. But the rule is there, and there have been and will be filibusters.

Of course, there is one right now, by Senate Democrats, against the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia. Now in the minority and aware that at least 54 senators--the 51 Republicans plus at least three of their number--would vote for Estrada, Senate Democrats are clutching for such power as they might find in Rule XXII.

The question their filibuster raises is its justification, especially since, in the long history of the republic, the tactic never has been used against a circuit court nominee. Indeed, not that long ago, leading Democrats explicitly opposed judicial filibusters. Here are some famous last words, uttered by Sen. Patrick Leahy in 1998: "I would object and fight against any filibuster of a judge, whether somebody I opposed or supported. If we don't like somebody the president nominates, vote him or her down."

The Democrats' stated reason for their filibuster is that Estrada, whose legal brilliance they don't dispute, has failed to provide enough information about his legal views. "If we get that information," Senate Minority Leader Tom Daschle said earlier this month, "we will let every senator make his or her decision."

To "get that information," Daschle wants (1) President Bush to release memos written by Estrada when he served in the 1990s as a career attorney in the solicitor general's office and (2) Estrada to "answer questions he refused to answer during his [confirmation] hearing."

Daschle won't be given those memos. And for a reason that transcends partisanship: The confidentiality and integrity of internal deliberations by government litigators must be ensured. Every living former solicitor general--including four Democrats--signed a joint letter to the Senate making that compelling point.

Nor can it be seriously maintained that the memos would reveal Estrada as some right-wing ideologue out to twist the law. Consider the testimony of Seth Waxman, who served as solicitor general under Bill Clinton. In a letter supporting the nominee, Waxman says Estrada was "a model of professionalism and competence" during the time the two men worked together. And: "in no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views."

As for the request that Estrada answer questions he "refused to answer," the Democrats especially want Estrada to tell them his views of specific Supreme Court cases, such as Roe vs. Wade. While emphasizing that, as a circuit court judge, he would be obligated to apply the Supreme Court's rulings, regardless of his views of them, Estrada declined to opine on whether a given decision like Roe was correctly decided or not. He explained it wouldn't be appropriate for him to offer a view on a case "without doing the intensive work that a judge hearing that case would have to undertake."

Estrada's position here hardly is exceptional and enjoys support in the rules of judicial ethics. Circuit court nominees before him--including those chosen by Democratic presidents, including Clinton--took the same position.

The weakness of the Democrats' stated reason for their filibuster makes you wonder whether it is the real reason. There can be little doubt that the filibuster is a tactic designed to influence the president's power to nominate circuit court judges and especially any Supreme Court justices. The Democrats want nominees they would describe as "moderate."

But the problem with using the filibuster against a circuit court nominee--for whatever reason--lies in the precedent it establishes. If Estrada is denied a vote, Senate Republicans can be counted upon to remember how the feat was accomplished.

That prospect may be too distant for Democrats to worry about now. But their novel effort has raised the question of whether the filibuster should become a routine weapon in the now 20-year-old battle over the federal judiciary.

One must hope at least six more Democrats will find their way to the position Leahy once held. Judicial nominees shouldn't be subjected to filibusters. Each one deserves an up-or-down vote.

Terry Eastland is publisher of The Weekly Standard.