- The Washington Times - Sunday, March 2, 2003

Some Republican senators now say that if Democrats succeed in blocking Miguel Estrada's nomination to a federal appeals court seat, they officially will set a new standard for contentious judges a standard Republicans then will enforce against the next Democratic president.
"The bar has been raised if they don't back off," said Sen. John Ensign, Nevada Republican. Sen. Pete V. Domenici, New Mexico Republican, agreed: "Many Republicans will assume that. Why wouldn't you?"
Sen. Kay Bailey Hutchison, Texas Republican, said there's no need to threaten Democrats explicitly with retaliation they already know that will come if they persevere.
She singled out Sen. Patrick J. Leahy of Vermont, the top Democrat on the Judiciary Committee. Mr. Leahy in the past has opposed the filibusters of judicial nominees. He is now one of the leaders of the Democrats' effort to scuttle the Estrada nomination.
"You don't have to say it; they know," she said. "They know, because Patrick Leahy has been in the forefront of saying they would never filibuster judges in the past."
But Judiciary Committee Chairman Orrin G. Hatch, Utah Republican, said he doesn't want to match the Democrats with filibuster for filibuster.
"I would not want our side to stoop to levels they've stooped to," he said. "I think that filibusters [on judges] should be broken, because they fly in the face of the Constitution itself."
Sen. George Allen, Virginia Republican, agrees, saying Republicans shouldn't apply "situational ethics" to say that once Democrats do it, it is then acceptable for Republicans as well.
"My view is, if we are somehow burdened in this country with a Democratic president, you should just vote yes or no," Mr. Allen said.
Mr. Estrada's nomination to the U.S. Circuit Court of Appeals for the District of Columbia has preoccupied lawmakers on the Senate floor since Feb. 5. Democrats have objected to holding a full Senate vote on him, arguing he hasn't been forthcoming with information for them to evaluate him.
Republicans say Mr. Estrada had a fair hearing in the Judiciary Committee, and they say there's more information on him than on most other circuit court nominees. After nearly a month of the Democrats' filibustering a vote on Mr. Estrada's nomination, the tactics are provoking outrage among Republicans, such as Mr. Allen.
"I think it's gutless to use this approach, this filibuster approach," he said.
Republican Senate majorities have blocked Democratic presidents' nominees, and Democratic majorities have blocked Republican nominees before. But Democrats are taking that a step further by using the filibuster, a technique available to a minority party to hold up action.
President Bush in October proposed a truce to the back-and-forth escalation that would require the Senate to vote on a nominee within 180 days of receiving the nomination.
"What's going on now with this new tactic is a dramatic escalation of a problem that was already severe, and the president has said we need to look forward and solve this problem, no matter which party is president and who controls the Senate," an administration official said Friday, speaking on the condition of anonymity.
Some Republicans hope that if they can break this filibuster, it will dampen Democrats' enthusiasm for filibusters on future nominees.
"I just hope that they will realize this is a very dangerous road, and I hope we break the idea this is a legitimate tactic," Mrs. Hutchison said.
For their part, Democrats said this week that Republicans set a new standard for conduct in the Judiciary Committee when Mr. Hatch overruled their objections and held votes on two hotly contested judges Thursday. Democrats said that move violated agreed-upon rules about when and how to have votes.
"This reckless exercise of raw power by a chairman without regard to the agreed-upon standards of conduct that members of the committee have agreed to is ominous," Senate Minority Leader Tom Daschle, South Dakota Democrat, said on the Senate floor. "Senate committees either have rules, or they don't."
Technically, Democrats are not engaged in a filibuster because no "cloture" vote the procedure to end a filibuster, which requires 60 votes has been called. But Democrats say they have enough votes to sustain a filibuster if it comes to that.
Republicans have been reluctant to push for cloture.
However, some leaders argue that it would enshrine the standard of 60 votes and might lock some Democrats into opposing Mr. Estrada when, given a little more time, they could be convinced to support him.
But other Republicans say that forcing a vote now might persuade some of the Democrats on the fence, particularly those up for re-election next year, to support Mr. Estrada rather than have to vote against him.

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