- The Washington Times - Sunday, September 14, 2003

A flagrantly unconstitutional and dishonest Senate Democrat filibuster succeeded last week in forcing the withdrawal of the nomination of star-studded Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit. Liberal Democratic Sens. Edward Kennedy of Massachusetts and Charles Schumer of New York crowed over their defeat of an Horatio Alger-like nominee whose credentials glittered and whose character inspired.

The two solons obtusely insisted the Constitution had been honored by preventing Mr. Estrada’s confirmation by a Senate majority through the filibuster maneuverings of non-mainstream Democrats. The nominee’s withdrawal will not have been in vain, however, if it awakens Senate Republicans and President George W. Bush to the urgency of voiding the Senate filibuster rule as applied to judicial nominations as unconstitutional. Otherwise, the power to determine the ideological complexion of the federal judiciary will have been yielded to a Democrat fringe.

Neither the letter nor spirit of the Constitution lends a crumb of support for the unprecedented filibuster of judicial nominations by Democrats for the purpose of circumventing the simple majority constitutional standard for confirmation. A filibuster requires 60 votes to defeat under current Senate rules.

The Founding Fathers entrusted the appointment power to the president in Article II to encourage judicial excellence. During the Constitutional Convention of 1787, the delegates withdrew the appointment authority from the Senate because experience had proven that petty jealousies and sordid horse trading invariably degrade the nominees of collective bodies; and the president spoke for a nationwide constituency equally affected by federal statutory and constitutional rulings in contrast to the parochial visions and loyalties of senators.

The Senate retained a confirmation role, however, to screen presidential nominations for incompetence, cronyism and corruption. But unlike treaty ratifications, constitutional amendments, or convictions for impeachable offenses — each requiring two-thirds majorities in the Senate — judicial appointments required only simple majorities for confirmation. Single judges were less momentous in the life of the nation. And the president’s nationwide perspective and responsibility for shaping the federal judiciary would be too easily thwarted if a Senate minority could shipwreck his nominees.

Both the language and purpose of the Appointments Clause of Article II are flouted by Senate filibusters of judicial nominations. The delaying tactic, de facto, unconstitutionally raises the confirmation threshold from a simple majority of senators present and voting to 60.

That constitutional irregularity explains why the Democrat inspired filibuster of Mr. Estrada and ongoing filibusters of Bush nominees Priscilla Owen and William Pryor are unprecedented in more than two centuries of federal judicial appointments. Never before has a party repudiated at the polls boldly sought to veto the preferences of the victors.

Democrat senators resorted to intellectual dishonesty to justify their unconstitutional filibuster of Mr. Estrada. It was said by a liberal fringe that the nominee, highly acclaimed by such mainstream organizations as the American Bar Association, was nevertheless outside the mainstream of prevailing constitutional thought and doctrines.

But if Mr. Estrada is outside the mainstream, then the term has no meaning. His views generally accord with the Supreme Court of the United States, a majority of subordinate federal judges and President Bush and his popular constituency.

Indeed, a major theme of Mr. Bush’s campaign was the appointment of federal judges in the mold of Supreme Court Justices Antonin Scalia and Clarence Thomas. If Mr. Estrada’s Democrat detractors were correct in their pejorative characterization, then 50 percent or more of federal judges and voters are also outside the mainstream. The nominee’s opponents would have us embrace the absurd and Orwellian concept of a minority mainstream.

Democrats also argued that the Bush administration’s failure to disclose privileged legal memoranda drafted by then Assistant Solicitor General Estrada denied them indispensable information to evaluating his qualifications.

Non-disclosure, however, was robustly defended by former Democrat solicitors general who insisted the intellectual rigor in the office would languish were the confidentiality of internal legal advice compromised.

Moreover, no Democrats hinted that either their opposition to Mr. Estrada opposition or his Republican support might be altered by such disclosure. Further, Democrats sported with the truth in simultaneously decrying Mr. Estrada as categorically outside the mainstream yet complaining they were insufficiently acquainted with his views to judge his qualifications.

With the Estrada nomination torpedoed, Senate Republicans and President Bush now confront a choice between surrendering control over the ideological complexion of both the Supreme Court and the lower federal judiciary to a Democrat minority; or, voiding the Senate filibuster rule as unconstitutional in its application to judicial nominations.

To choose surrender would be to deface the Constitution and to embolden further Democrat minority usurpations. To choose the institutionally contentious but constitutional course against the filibuster would be worthy of a chapter in “Profiles in Courage.”

Bruce Fein is a founding partner of Fein & Fein.

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