WASHINGTON -- The Democratic filibuster against judicial nominee Miguel Estrada has little to do with the 41-year-old Honduran immigrant. It is part of a grand design to talk to death a succession of conservative judges selected by President Bush. Democrats are intent on keeping the Senate from voting on any appellate nominations that do not meet the party's specifications.
This extraordinary design, without precedent in two centuries of judicial nominations, was launched Jan. 30 in the office of Senate Minority Leader Tom Daschle. Present were Assistant Leader Harry Reid and six Senate Judiciary Committee Democrats. With all pledged to secrecy, the fateful decision was made to filibuster Estrada's nomination.
That was only the beginning. One Judiciary Committee member there was Sen. Edward M. Kennedy, the Senate's 71-year-old liberal lion. In private conversations with Daschle and in Democratic caucuses, Kennedy has pressed a plan to prevent President Bush from putting his ideological stamp on the federal bench. As Republicans returned this week from recess, they had no immediate response to this threat.
Internal Senate sources depict a Senate minority on an audacious mission. Rare use of the filibuster to keep a judicial nominee off the bench is only the tip of the iceberg. Multiple filibusters would generate the first full-scale effort in American history to prevent a president from picking the federal judges he wants.
At the Jan. 30 meeting in Daschle's office, the eight senators agreeing to filibuster the Estrada nomination did not discuss his merits or demerits as a nominee for the District of Columbia appeals court, second in importance only to the U.S. Supreme Court. Rather, the objections to Estrada were political and procedural. His confirmation, they agreed, would set a precedent that appellate nominees need not answer detailed questions and would make it hard to stop him as a possible future Supreme Court nominee. The senators talked about slowing down a Bush "assembly line" of conservative nominees and cited support from an energized Democratic base.
Considering these politicized views, what Kennedy said when he took the Senate floor five days later sounds disingenuous. Demand for Estrada's memos as a government lawyer, Kennedy said, "would be helpful in understanding Mr. Estrada's fitness for a judgeship" -- as if he had not decided to talk the nomination to death.
Off the Senate floor, Kennedy was more candid. According to Senate sources, he urged Daschle to devise a long-term strategy: to make a short list of judicial nominees that the Democrats would keep from ever coming to a vote. Privately, Kennedy talks frankly of a filibuster strategy.
While conceding that Estrada is "intelligent," Kennedy has told colleagues that he must be filibustered because of the need to win an eyeball-to-eyeball confrontation with the White House. Kennedy tells his younger associates that Bush's application of an ideological litmus test constitutes the "worst" judicial nomination process he has seen in 40 years of service. He accuses the president of daring Senate Democrats to keep ideologues off the court and refers to Estrada as a "stealth right-wing zealot." Such comments belie the notion that Bush's nominees would be given a Senate vote if only they would answer some questions.
Such an intractable position raises the question of how Democrats would expect to get any judges confirmed in the event that Bush is defeated for re-election but the Senate remains Republican in the 2004 voting. The Republican Judiciary Committee chairman, Sen. Orrin Hatch of Utah, is outraged by the Democratic strategy and ready to respond in kind. But Hatch will not be chairman in 2005, thanks to Republican term limits. Sen. Arlen Specter of Pennsylvania, next in GOP seniority, as chairman might stop the cycle of vengeance.
That's what worries Republican strategists, who talk about jumping conservative Sen. Jon Kyl of Arizona above Specter to guarantee a strong hand in the confirmation wars. Well in advance, there is consideration of blocking a vote on future judicial nominees by a Democratic president until the Republican nominees who had been blocked by filibuster are confirmed. That is the morass into which the Senate is being led by Teddy Kennedy, its second most senior member.