Don't let Miguel Estrada's nomination die in vain

Ben Shapiro

11/19/2003 12:00:00 AM - Ben Shapiro

3:00 a.m., Thursday, Nov. 13. The Democratic filibuster against President Bush's judicial nominees continues. With the United States population sound asleep, Sen. Mark Pryor (D-Ark.) begins to read from Robert A. Caro's "Master of the Senate," a biography of Lyndon Baines Johnson. "It's 1,040 pages," he announces. "I assure you, I'm not going to read all thousand pages."

By Friday morning, the debate was over. Democrats had won. Republicans had been unable to reach cloture. The Democratic filibusters against Charles Pickering, William H. Pryor Jr., Priscilla Owen, Miguel Estrada, Carolyn Kuhl and Janice Rogers Brown continued. President Bush's nominees remained stuck in the Senate.

Senate Majority Leader Bill Frist (R-Tenn.) stated that ongoing filibusters could not be tolerated. Sen. Lindsey Graham (R-S.C.) told the radio program "Concerned Women Today" that he would file a lawsuit with the Supreme Court alleging unconstitutional conduct by the Democrats. "This process is going to destroy the constitutional system of appointing judges," Graham said. "It's going to drive good men and women away from wanting to serve."

Republicans have the right to be frustrated. But mainly, they should be frustrated with themselves. Majority Leader Frist bungled this filibuster. A serious issue became a joke from beginning to end. Unwilling to risk a real, hard-nosed filibuster fight and unable to risk a judicial scorched-earth policy, the Senate Republicans look incompetent, petty and weak.

By scheduling a filibuster, Republicans looked like the political aggressors. They were "forcing" Democrats to put Senate business aside at the behest of radical right-wingers. And Frist's 30-hour limit on debate meant from the beginning that Democrats knew the end was in sight. In military occupation, telegraphing a pullout date provides ammunition for the enemy. In Senate debate, the same principle applies.

The Washington Post quickly labeled the 40-hour debate an "anti-filibuster filibuster" -- essentially accusing Republicans of holding up the business of the American people. Pictures of Sen. Tom Harkin (D-Iowa) with a sign blaring "I'll be home watching 'The Bachelor'" splashed across the mass media. Senate Democrats handed out a mock children's book titled "Republican Senators and the Terrible, Horrible, No Good, Very Bad Night" during the debate.

And Republicans could do nothing. Two cloture votes were taken, and each garnered only 53 votes, seven shy of the number needed to stop debate and vote on the nominees.

The purpose of this politically foolish demonstration remains unclear. The conservative base, disillusioned by this watered-down talkathon, could become less motivated to vote in the next senatorial election. Moderates will view Frist's efforts as a waste of time. The liberal base will find new hope and new motivation.

Worst of all, well-qualified judges are forced to dangle in the wind as Republicans refuse to "go to the mattresses" for them. Miguel Estrada, the brilliant Latino nominee whom many expected to reach the U.S. Supreme Court, already withdrew from consideration when Republicans failed to push hard enough for his nomination. Surely, other nominees will not be far behind.

So what can the Republicans do with a majority of 51? Play hardball.

There are two possible strategies. The first, colloquially known as the "scorched-earth" policy, involves dumping the filibuster through majority vote. John Gizzi of Human Events describes the process: "Under this scenario, a Republican senator would make a point of order that it is unconstitutional to require more than 51 votes to confirm a presidential nominee and request a ruling from the chair. If the chair, as planned, rules that the point of order is correct, a simple majority of the full Senate -- which the Republicans have -- could uphold his ruling, effectively changing Senate rules to force simple up-or-down majority votes on nominations." Unfortunately, Republicans will likely fail to get even a simple majority to support such a ruling. Liberal and even moderate Republicans will defect.

The second strategy is more practical: Force a real filibuster. Democrats must be forced to filibuster, and filibuster, and filibuster. No cutoff point should be set. Bring in the cots. Bring in the catering.

When Mark Pryor read from "Master of the Senate," he didn't read the only section that might have provided a clue for Bill Frist and the Republicans. On Page 864, Caro describes LBJ's argument against filibustering the 1957 Civil Rights Act: " ... even if we do stave off cloture this year, he told the southerners, filibustering this year will hurt us in years to come. There was just too much sentiment out there in the country against filibustering. It's too easy a target."

Filibustering remains an easy target. Let the Democrats talk themselves into an electoral fiasco. Don't give them an easy way out.