The battle now being waged by the Senate Democrats against President Bush's nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia is no routine skirmish. It is the first gun to be fired on a brand-new battlefront between the parties.
Time was – and not so long ago, either – when judicial nominees were treated with careful courtesy by the Senate, which under the Constitution must "consent" to their appointment. Their character was fair game, but their opinions on legal questions that might come before them on the bench was forbidden territory. To ask a judicial nominee, however indirectly, how he would vote on some vexed legal question if it came up in his court was an act of monumentally poor taste. The nominee would decline to answer the question – most often simply by replying that it would be improper for him to venture an opinion – and that would be that.
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We might as well make up our minds that those days are gone for good. The federal courts, especially the higher courts, and above all the Supreme Court, have asserted their authority over so many hot-button issues in American society that the political biases of federal judges, who are appointed for life, are simply too important to continue to ignore. If the courts are going to muddy their shoes with the grunt-work of daily politics, they are going to have to go through the messy processes of democratic push-and-shove, just like its other practitioners.
This development has been under way for some time. The Democrats have led the way – though, in fairness, that is largely because the presidents picking the judicial nominees have mostly been Republicans. Sen. Ted Kennedy, D-Mass., will probably go down in history as having started it all, thanks to the merciless and utterly false, but highly successful, series of slanders he rained down on Judge Robert Bork when that distinguished jurist was nominated for the Supreme Court. (That unforgettable hurricane of smears gave rise to the verb "to bork," which is likely to get a lot of exercise in the years ahead.)
Estrada is simply the nominee unlucky enough to be before the Senate when Sen. Charles Schumer, D-N.Y., and others decided to open the new battlefront. (They also fear that he may be President Bush's choice as the first Hispanic member of the Supreme Court, if they confirm him for the Court of Appeals.) Not having served on a court, he doesn't have a long "paper record" of opinions that might reveal his predilections, and he has steadfastly (and rightly, according to all precedent) refused to say how he might rule, if confirmed, on future "emanations" from "penumbras" of the Constitution that liberal justices have found and cited as their authority for innovative liberal decisions.
Even the solicitors general under whom he worked in the Clinton administration have testified to his impressive legal skills, and have rejected all accusations of conservative bias. Yet the Democrats in the Senate, while insisting they would not object to a "mainstream conservative" nominee, protest that they cannot be sure that Estrada is not "way out beyond the mainstream," however they might define that term. Recently, for the first time in judicial history, they decided to make the confirmation of Miguel Estrada the subject of a filibuster, which under the Senate rules can be ended only by a vote of 60 members. In short, they will resist with all their might a simple majority vote on his confirmation, because they know they would lose it.
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The Republicans have responded by citing past precedent, and by charging that the Democrats are resisting the appointment of a Hispanic to the D.C. Court of Appeals. (They are, but not because he is Hispanic. He is just not their kind of Hispanic.) Such responses woefully underestimate the true significance of the battle. The GOP had better win this one, or they will never be able to name a conservative to an important federal court until they command 60 votes in the U.S. Senate.
The solution is simple: Force the Democrats to filibuster publicly – in nighttime sessions and sessions without holidays, holding up all other important Senate business – until the American people are sick and tired of the spectacle. Senate Majority leader Bill Frist, R-Tenn., it's up to you.