IT'S NOT CLEAR whether the constitutional definition of "advice and consent" will become a casualty of Miguel Estrada's fight for a seat on the D.C. Circuit Court of Appeals, but the possibility is serious and sobering. In a 55-44 vote, Democrats last week defeated a Republican attempt to break their unprecedented partisan filibuster of Estrada's nomination, opening the way for the simple-majority standard for Senate confirmation of judicial nominees to be replaced with a super-majority requirement. The Republic isn't there yet. But it's close.
"If we go very much further there will be obvious consequences," said Sen. Jon Kyl, an Arizona Republican. "This standard will have to be applied to both parties and by both parties. This is very close to the point where you can't pull it back."
The strain on the Constitution and Senate precedent is now obvious. Less obvious is the toll the Estrada fight has taken on the relationship between the new Senate GOP leadership team and the Bush White House. While GOP senators are loath to admit it, the Estrada debate has drifted on this long because the White House and the GOP leadership could not fashion a cohesive strategy.
Estrada is not the first fight new majority leader Bill Frist would have chosen--at least not under the restrictions imposed by the White House. Senate Republicans believe the White House has severely limited their room to negotiate.
Early on, several veteran GOP Senate staffers warned the White House and Justice Department to prepare for a brawl. They then gingerly asked two questions: Would Estrada answer more questions from Democrats? And was there any flexibility in the White House's objection to releasing the working memos Estrada wrote while deputy solicitor general in the Clinton Justice Department?
Senior Senate GOP staff told White House and Justice Department officials that cutting a deal on limited Democratic access to Estrada's working papers could lead to his confirmation. The White House refused. There would be no access to Estrada's working papers. Period. This adamantine posture, in the eyes of some in Senate GOP leadership circles, handcuffed Frist.
"There's some frustration," said a top GOP leadership aide. "From the very beginning we told them that was the only way out and a face-saver for everyone. But it came down to the fact that no one on the White House or Justice team wanted to walk into the Oval Office and say to the president, 'You might have to give up these memos.'"
The administration's position on the memos reflects its deeply held ethic of aggressively defending executive branch prerogatives. Though the White House has never characterized the Estrada matter as one of executive privilege (it is more akin to lawyer-client privilege), it falls into the broad category of executive branch muscularity. And while most Republicans generally support this posture, some Bush allies on and off Capitol Hill have come to question the administration's fastidiousness in the Estrada fight.
"I understand the principle, and I support it, but on this one it feels belligerent," said a longtime Republican lobbyist and ally of the Bush White House.
When a reporter last week asked Sen. Rick Santorum, the GOP conference chairman, if opposition to divulging Estrada's Justice Department memos was permanent, he snapped, "Ask the White House."
Conservatives like Sen. Kyl see the Estrada fight as purely ideological and strongly oppose cutting any deal on access to his working papers.
"It's a phony issue, a manufactured issue," said Kyl. "We want to win this, but you don't win it by breaking a principle that has served this nation well for 200 years. And if we deal on the papers, it will be something else."
But Sen. Harry Reid, the Senate's No. 2 Democrat, has said he will support Estrada if the papers are turned over and nothing objectionable emerges. Enough Democrats to break the filibuster would surely follow Reid, senior Democratic sources say.
"Their guy's not going to get confirmed without them," said a top Democratic lawyer who backs Estrada. "This is not complicated. The White House is not going to confirm him without paying a price."
If that price seems too high, the White House may want to reexamine the price of the alternative, an increasingly bitter filibuster fight. While protecting the privacy of internal memos at the Justice Department, the White House may be sacrificing the 50-vote majority as the historic benchmark of constitutional fitness for the federal bench. Some Senate Republicans believe a new 60-vote standard for judicial appointments could severely hamper this president and all future presidents. And some Senate Republicans wonder why it's more important to protect executive privilege than a president's power to have judicial nominees confirmed by simple majority vote.