- The Washington Times - Wednesday, March 5, 2003

The fight over federal appeals court nominee Miguel Estrada is now entering a new phase. According to GOP caucus leader Sen. Rick Santorum, the Republicans will attempt to force the issue this week by filing a cloture motion on the Democrat's gentleman's filibuster against Mr. Estrada's nomination.

Republicans hope that putting their Democratic colleagues officially on the record against Mr. Estrada, the first Hispanic to sit on the U.S. Court of Appeals for the District of Columbia and a likely candidate for the Supreme Court, may be enough to change a few minds. Only five votes would be enough to end the debate, and it's hoped that those Democrats up for re-election next year, such as Sens. Barbara Boxer, Blanche Lincoln, Ernest Hollings, Ron Wyden and Bob Graham, might be particularly pliable.

However, such a demonstration is, at best, a consolation prize, since the cloture vote could have been taken at any time since Feb. 5, when Mr. Estrada's nomination was taken up on the Senate floor. There's also the possibility that a series of cloture votes (Mr. Santorum promised that, if the Thursday vote failed, there would be at least one more) could have the opposite effect, hardening the minds of those Democrats anxious to placate their party's special interests. Besides, if they wish to really put their colleagues on the spot, Republicans have a more dramatic means to such a demonstration a real filibuster.

Such a filibuster forces Democrats to talk about anything they want to, so long as they are willing to continue to be seen by their constituents as obstructing the Senate's business and blocking an amply qualified candidate who has put himself at their disposal for almost two years.

Despite a few late-night sessions since Mr. Estrada's nomination hit the floor, Republicans have not forced their filibustering fellows to talk all night, allowing a gentleman's measure to serve in this less-than-genteel debate. Even a series of cloture votes won't have the same effect, since Senate business will still go on.

Republicans' reluctance seems to be based in the simple fact that filibusters are so inconvenient. Democrats would only need a few members to hold their place on the floor, while all 51 Republicans would have to be present, awaiting the first opportunity to force the vote. Unfortunately, during a lengthy filibuster, it's more likely that a few Republicans will take breaks than a few Democrats will break ranks.

Thus, the anticipated cloture vote represents not so much a failure of Republican Senate leadership as of followership. While some Republican leaders have expressed a desire to force a full-fledged filibuster, they really have rather small cudgels to hold their rank and file in place, much less penalize them if they break ranks. Besides, senators are notoriously independent, preferring to lead a glorious but doomed calvary charge than march along with their fellow foot soldiers in a crushing phalanx. The cloture vote is a tacit admission that Republicans have failed to coalesce into the disciplined fighting force needed to overcome obstructionism on judgeships.

As worrisome is the fact that the nomination fight appears to be approaching a critical juncture. The war in Iraq will undoubtedly sweep other matters aside, and the Senate has other legislation it should take up soon, including the president's tax-cut plan and a ban on partial-birth abortion.

This weekend would seem to be an opportune time for Republicans to put up a full-fledged floor flight against a filibuster on Mr. Estrada. It's time for Republicans to go to the mattresses figuratively and literally. It's time for Republicans to march like the majority they are. It's time for Republicans to make 'em talk.

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