HE EMIGRATED from Honduras to the United States as a teenager who knew little English but worked hard throughout school, graduating from Columbia and then later with honors from Harvard Law School. During his career, he clerked for the Supreme Court, served as a federal prosecutor and was rated as "well-qualified" by the American Bar Association. Yet, despite all these positive aspects and many more, Miguel Estrada was essentially "filibustered to death" by obstructionist Senate Democrats, and therefore forced to withdraw his nomination last Thursday to the U.S. Court of Appeals for the D.C. Circuit.
Enough is enough. For two years, Sen. Ted Kennedy, D-Mass., and most of his comrades on the other side of the aisle have hidden behind the rules of Senate procedure and blocked or delayed several of President George W. Bush's judicial nominees. To President Bush, Senator Bill Frist and Senator Orrin Hatch (chairman of the Senate Judiciary Committee): It's time to take the gloves off -- if the Democrats want to play hardball, then batter up.
Miguel Estrada is not the one singular example of Democrat obstructionism in the U.S. Senate. Nominees William Pryor and Priscilla Owen continue to be filibustered while several other Bush nominees are expected to receive the same treatment. The first thing that should be made clear is that the filibuster utilized by Senate Democrats is not your "father's filibuster." Nowadays, a senator is not required to stand on the floor of the Senate and talk for hours and hours a la Strom Thurmond in 1957. Indeed, Senator Kennedy and Senator Robert Byrd need only announce their intention to filibuster. This practice must stop; if a senator is truly passionate about halting a judicial nomination, make him or her go through the rigors associated with a real filibuster and stand and talk for hour upon hour. Altering the rules of the filibuster should effectively weed out those attempting to abuse the procedure.
Another solution to Democrat obstructionism is to alter the floor rules associated with the filibuster but only as they pertain to judicial nominees. Currently, it takes 60 yea votes to end a filibuster in the Senate. Lowering this number to even 55 would limit unwarranted filibustering of judicial nominees. Lowering the number of votes needed is not unprecedented. In 1975, the Senate reduced the number of votes needed to end any type of filibuster from 66 to 60 votes.
Many might decry any Republican attempt to alter filibuster rules as a gross misuse of power. In fact, the Democrats are the ones misusing power. The president and the Senate have a joint constitutional responsibility in judicial appointments. Forty-five senators acting together to block judicial nominees is a misuse of power. The Constitution does not grant a minority of senators the right to veto judicial nominations. If it takes 51 senators in a straight up or down vote on the Senate floor to confirm a nominee, it surely makes no sense to allow 41 senators the right to reject a nominee through filibustering. In fact, it's a sad statement that the Democrats are exploiting the "gentlemen's rules" of the Senate to mask their true motive: rejecting judicial nominees because they are too "conservative" or, more specifically, because they don't support the radical liberal agenda.
Democrats realize that with a Republican president and a Republican House and Senate, the best chance they have to advance their liberal social agenda is through the judiciary. Credit should be given to the Democrats, however, for their efforts in shifting the notion of normalcy as it applies to the judiciary. Judges and nominees who share the values of normal Americans and who uphold the Constitution are now "extremists." If a judge opposes same-sex marriage, he's a homophobe; if he, gasp, believes schoolchildren should recite the Pledge of Allegiance every morning, then he's not an extremist, but rather a "religious extremist."
The most disturbing element of the Estrada obstruction is that there are other Bush nominees currently receiving the filibuster treatment, and from what Minority Leader Tom Daschle says, there's no end in sight to this sophomoric behavior. While Bush and the Republicans may be banking the political capital associated with the Democrats' judicial obstructionism for next year's elections, Daschle and his cohorts should be leery of intensifying the partisan divide when many political pundits are predicting that the Republicans might reach the magic number of 60 senators next fall.
(Joe Schilling's column appears Tuesdays in The Cavalier Daily. He can be reached at jschilling@cavalierdaily.com.)
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