I've read this entire thread, and I think many here are missing a very important issue: the Dems are trying to turn the filibuster into a weapon with which to change the Senate's traditional process of confirming judicial nominees. They must not be allowed to succeed.
Did not Orrin Hatch state that there has never _been_ a filibuster of a judicial nominee in the history of the Senate? I seem to recall reading that in another thread.
Currently, it takes a majority vote of 51 Senators (or, in the case of a 50/50 tie, the vote of 50 Senators plus the Vice President) to confirm a judicial nominee.
However, if the procedural precedent is established that it is acceptable Senate policy to filibuster a judicial nominee, that 51-vote majority is replaced by a 61-vote SUPERmajority - the number of votes needed to force cloture and to _end_ the filibuster.
This will guarantee that -- at any time in the future -- the opposition party will be able to override the principal of "majority vote" regarding judicial appointments by going to filibuster. Whenever there is doubt that votes for a controversial nominee might not reach the "magic number" of 61, the opposition will have in hand the tool with which to defeat it, or at least to seriously endanger it by tossing the filibusterial monkey-wrench.
In view of this, the Democrats' attempt to Shanghai the confirmation process must be met with a strong, decisive, precedent-setting counterpunch by the Bush administration in cooperation with the Senate Republican leadership.
But -- how to respond? How to deflate the Democrats' balloon, not only this time, but once and for all? How to stop "judicial filibustering" dead in its tracks?
The counter-weapon exists: it's called "recess appointment".
True, a recess appointment is "temporary" by design and intent. But, once so "appointed", what followup action must the Senate take? A simple "yea" or "nea" vote to confirm at the end of the recess appointment? If so, that will be by a 51-vote "majority", is that correct?
If that is the case, then _any_ attempt to block a judicial confirmation through a filibuster will be rendered pointless. And the Democrat's new weapon will have been de-fanged at the outset, transformed into a paper tiger without teeth. So you want to filibuster our next nominee? Do that, and we'll still force a simple majority vote, bypassing your threatened filibuster with a recess appointment at the earliest opportunity.
Granted, this is uncharted territory, not without some peril. But it is imperative that measures be taken _now_ to thwart the Dems' attempt to establish this new Senatorial precedent. Once established, it _will_ be used against us, again, and again, and again.
For this reason, I think the Bush administration's best move at this point would be to appoint Mr. Estrada to his new position during the current recess. Yes, there will be a [short-lived] "firestorm" of protest from the Democrats and the left-leaning press (bring it on, Mr. Dershowitz!). But the Republicans will have properly "returned fire" across the Democrats' bow: that desperate measures to subvert Constitutional process will be met with strong countermeasures to _preserve_ that process.
If I recall, Clarence Thomas won confirmation with a majority of 53 or 54 votes. Regardless of the high-tech lynching attempt the Democrats made of his confirmation, I doubt any Senators entertained the notion of simply filibustering his confirmation. How times have changed! Today, tactics that only 10 years ago seemed unthinkable or unacceptable are now fair game.
If they'd had the gaul to filibuster the Thomas confirmation, the Dems would have won, and we wouldn't have Justice Thomas on our side today. If we don't stop the Dems this time, we are putting into their hands the gun they will use to shoot down future Clarence Thomases, as well as Miguel Estrada and the like-minded conservative nominees that will come after him.
President Bush must appoint Miguel Estrada "in recess", at once aborting the current fillibuster, and ensuring that there will never be a Senatorial fillibuster of a judicial nominee again.
Cheers!
- John