Miguel Estrada's decision to withdraw his nomniation to the U.S. Court of Appeals for the D.C. Circuit was long overdue; not because Estrada should not have been confirmed, but because it's been obvious for months that Senate Majority Leader Bill Frist would not break the Democratic filibuster preventing a Senate vote. Estrada--and every other Bush judicial nominee now being held up--should have withdrawn from consideration months ago, both for the sake of their personal integrity and to deny the Senate Republicans and the White House the use of a political issue they refuse to act upon.
Frist remains unwilling to use the so-called "nuclear option" to bring filibustered judicial nominees to a vote. This option entails simply calling for a vote despite the Democrats' announced filibuster. Under the normal rule, a filibuster continues until three-fifths of the Senate, 60 votes, invokes cloture. But Frist and the Republican majority could simply override that requirement and bring a nomination to an immediate vote. When the Democrats object, the Republican president pro tem of the Senate overrides the objection, and the majority sustains that decision on appeal. Then the majority votes, presumably to confirm the nominee.
Frist won't employ this option because it threatens to destroy what remains of the Senate's "collegiality". Much of the Senate's ordinary business requires unanimous consent; Democrats could bring the Senate to a halt simply by objecting to otherwise routine procedures. Frist is unwilling to risk this.
But what exactly is Frist trying to preserve? His biggest legislative priority right now is the Medicare prescription drug benefit plan now in a House-Senate conference committee. Frist considers this bill more important than confirming a single judge, or even a handful of judges. But this is poor prioritization. Confirming judges is an essential function of the Senate, in that it permits the continued functioning of the nation's judicial system. The prescription drug benefit, in contrast, is an unconstitutional redistribution of wealth designed to bolster the president's reelection prospects with a narrow interest group.
More importantly, Frist's nonaction on Estrada tells the country that he is willing to tolerate the type of collectivist profiling the Democrats are now using against the president's judicial nominees. Estrada was targeted for filibuster because he met a certain profile: a young, conservative Hispanic with Supreme Court potential.
The Democrats argue they opposed Estrada on ideological grounds. But there was no ideology present in the dispute over Estrada's nomination. There were some vague allusions to single-issue litmus tests, like abortion, but no Democratic senator ever offered an integrated ideological argument against Estrada's confirmation. Instead, there were repeated statements that Estrada is an "extremist," but that's a smear, not an argument.
The Democratic filibuster of Estrada violated the basic principles of parliamentary law. The filibuster exists to prevent the majority from imposing its will without adequate time for debate. The Democrats, however, never debated Estrada's nomination; they merely smeared it as part of a public spectacle. For that reason, the Republican majority was under no duty to protect the minority's debate rights under Senate rules, and accordingly should have forced a vote despite lacking the three-fifths majority to invoke cloture.
There are, of course, several more judicial nominees under filibuster. Unless Sen. Frist and his colleagues are willing to risk their personal political agendas to do their constitutional jobs, these nominees should follow Estrada's example and get out while they still can.