WASHINGTON -- The Senate is enjoying a scheduled recess this week, thanks to a decision by its Republican majority not to engage in heroic measures to bring pressure toward confirmation of judicial nominee Miguel Estrada. The question is whether the same business-as-usual attitude will prevail when the senators reconvene next week, relying on a change of heart by Democrats who are filibustering against Estrada's nomination.
Sen. Bill Frist, who became majority leader six weeks ago, faces an agonizing decision. He could continue the Senate's family-friendly style, interrupting the debate over Estrada with pending legislation and calling for occasional unsuccessful votes to impose cloture. Or, he could summon the Senate into around-the-clock sessions to attempt breaking the filibuster by force. The latter course would be ugly, but it may be the only way to confirm Estrada on the U.S. Circuit Court of Appeals for the District of Columbia.
Estrada, who in 1979 was a 17-year-old non-English speaking immigrant from Honduras, is now a 41-year-old Washington, D.C., lawyer talked about as a future Supreme Court justice. He has encountered the Clarence Thomas problem: relentless opposition by the Democratic high command to any conservative member of a minority group whose leaders are wedded to the Democratic Party. Estrada's foes now demand a super-majority for confirming judges.
Because Estrada would be confirmed in a straight Senate vote, his opponents have blocked such a vote -- the first genuine filibuster on a judicial nomination since the failed confirmation of Abe Fortas for chief justice in 1968, which began a nasty new era of contested nominations. With nothing in his record to justify rejection, the rationale for the filibuster is Estrada's refusal to answer questions about his judicial philosophy.
If he followed recent Senate practice, Frist would file a cloture petition to end debate. Since fewer than 60 senators are willing to impose cloture, the majority leader would be expected to pull the nomination. That would doom Estrada and establish an extra-constitutional super-majority for confirming judges.
Nevertheless, Republican senators, at their weekly luncheon Tuesday, decided to call for a Friday cloture vote before beginning their recess -- an effective death sentence for Estrada. The White House protested. So did Majority Whip Mitch McConnell, e-mailing his disagreement from his hospital bed where he is recovering from heart surgery. Sen. Rick Santorum, chairman of the Senate Republican Conference, and some 10 other GOP senators urged Frist not to bring the cloture vote Friday, and he agreed.
But would the majority leader cancel the recess and keep the Senate in session to demonstrate seriousness and commitment to Estrada? If he did, he would have faced revolt. Frist displayed true grit in his first days of leadership by canceling the January recess in order to attend to unfinished appropriations. Senate wives would not stand for a second cancellation. More important, senators and their spouses were so alarmed by terrorist warnings that they wanted to leave the capital immediately.
Frist is inclined to start scheduling multiple cloture votes when the Senate returns, but no decision has been made to travel that hazardous course. At this writing, only three Democrats -- Zell Miller of Georgia, John Breaux of Louisiana and Ben Nelson of Nebraska -- would support Estrada. That amounts to 54 votes, and no sign that pressure will increase their number.
An alternative to cloture votes is around-the-clock sessions, a technique unseen in the Senate for some 40 years. This goes far beyond last week's token night sessions (until 12:50 a.m. Wednesday night and 11:15 p.m. Thursday night). It would take courage and discipline to pursue this ugly process: cots brought into the Capitol, 3 a.m. quorum calls, sergeants-at-arms sent out to arrest absentee senators. There is no guarantee of success, but this tactic has broken filibusters in bygone years.
Frist has spoken to Senate Democratic Leader Tom Daschle about the possibility of permitting a vote on the confirmation if Estrada would answer a few of the Democratic questions about his judicial philosophy. He received no promises. With time growing short as the U.S. prepares for war in Iraq, the new Senate leader must soon select his strategy with far-reaching implications for how the nation is governed.