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With Vice President Cheney presiding, the Senate on Tuesday spent time “debating” the Senate’s proper role in the judicial selection process. Not surprisingly, it yielded more smoke than light.

Make no mistake, this “big picture” debate is sorely needed. More than twice as many Americans know the number of Rice Krispies characters than know the number of Supreme Court justices. More than one-quarter actually believe the text of the Constitution specifically protects a right to abortion. Twice as many teens can name the Three Stooges as know the Constitution’s first three words.

All of which makes President Bush’s emphasis on teaching civics such a worthy goal. It’s tough to have the right judicial-hiring process when we don’t even know what on earth judges are supposed to do in the first place. And thumbs-up to Senate Majority Leader Bill Frist, R-Tenn., for Tuesday’s discussion. Senate Democrats, however, were just lying and shuffling again about filibustering Miguel Estrada’s appeals-court nomination.

Sen. Edward Kennedy, D-Mass., for example, insisted Democrats want those confidential memos Mr. Estrada wrote while in the Justice Department because they are “the very documents the president and his advisers used to vet Mr. Estrada” in the first place. For but a moment, it was almost tempting to agree with, at least, Sen. Kennedy’s logic – they saw the stuff, so why can’t we? The moment passed, however, because Sen. Kennedy was lying.

Sen. Kennedy has a letter from White House Counsel Alberto Gonzalez to Sen. Charles Schumer, D-N.Y., dated Feb. 24, 2003. The third paragraph closes by stating that “no one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001.” Sen. Kennedy knew it was a lie, and he said it anyway.

The “Leahy shuffle” was also a sight to behold. For four weeks, Sen. Patrick Leahy, D-Vt., denied there was a filibuster at all because there had been no vote to “invoke cloture.” Proof of the filibuster, however, was the Democrats’ objection to 17 different offers to limit the debate and schedule the vote. Blocking efforts to stop debate, now that’s a filibuster.

But when last week the first cloture vote failed, Sen. Leahy did the shuffle, trotting out a chart listing cloture votes on previous nominees to various positions. These, he said, were “Republican filibusters” so the Dems are not doing anything new. Pretty slick!

Just two minor problems with Sen. Leahy’s chart: The nominees he listed and those he left off. His list ended with Marsha Berzon and Richard Paez, Clinton nominees to the radical U.S. Court of Appeals for the Ninth Circuit. The Senate’s cloture votes on their nominations were on March 8, 2000. Sen. Leahy’s chart did not mention that only 13 senators opposed cloture on Berzon and only 14 opposed cloture on Paez. Nor did it mention that both were confirmed the very next day.

Sen. Leahy knows that cloture votes are more often used to prevent filibusters than to stop them. His own examples prove it. On Nov. 10, 1999, then-Majority Leader Sen. Trent Lott, R-Miss., promised that he would bring up the Berzon and Paez nominations for a vote “no later than March 15 of next year.” Sen. Lott also promised to support cloture just to make sure the vote actually happened. Now Sen. Leahy uses a cloture vote guaranteeing a final Senate vote as a precedent for this filibuster, designed to prevent any final Senate vote. Even slicker!

Sen. Leahy conveniently left off his chart other cloture votes, and thus by his reckoning other filibusters, on Bush nominees. Last July, with Democrats in charge, the Senate took a cloture vote on President Bush’s nominations of Lavenski Smith to the Eighth Circuit, Julia Smith Gibbons to the Sixth Circuit, and Richard Clifton to the Ninth Circuit. Sen. Leahy perhaps left these off because, since Judge Smith is black and Mr. Estrada is Hispanic, it would look as though Democrats’ most common filibuster targets have been women and minorities. Ouch!

Sen. Lindsey Graham, R-S.C., quoted Sen. Leahy from June 16, 1998, saying that he would “object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.” Sen. Leahy shuffled again, this time saying Sen. Graham had quoted him out of context (ever heard that one before?). He was talking about anonymous holds, he said, not filibusters.

OK, here’s the whole quote: “I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty.” It’s on page S6522 of the Congressional Record. Not only is a hold not a filibuster and a filibuster not a hold, but Sen. Leahy vowed he would do neither.

Not a single Democrat has even attempted to explain why any of the arguments raised against the Estrada nomination justifies refusing to vote at all rather than voting no. That’s because it’s impossible to justify. Senators can vote for or against a nominee for any reason they choose. But they must vote.

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