When Borking isn't enough

So it looks like this is going to be the Year of the Filibuster. With both the Presidency and the Senate safely in the hands of the Republican Party, conventional wisdom would hold that the judiciary is going to get a bit more conservative. That, of course, assumes the Senate will actually get to vote on the judges Bush nominates. It's a simple procedural idea that doesn't seem so simple these days.

When the Senate went off on its two-week recess at the end of last week, it left in mid-filibuster on the nomination of lawyer Miguel Estrada to the D.C. District Court of Appeals. Normally, if a number of Senators don't like a judicial nominee, they just vote against him. Now, Democrats are charging that Estrada, a man they have dubbed the "stealth nominee," is a conservative who is trying to evade the tough questions about his views in an effort to be confirmed. Until they have more information, they say, they cannot vote for him.

Had Estrada been a judge from a lower court, senators could have read over his past opinions to get a sense of what kind of judge he would be on the Court of Appeals. But Estrada is a lawyer in the Justice Department, and thus his views are not as easy to gauge. In his hearing, he often avoided giving his position on judicial questions, saying instead he wanted to approach issues with an open mind.

Democrats have charged, probably correctly, that Estrada was simply using a common tactic to hide his conservative views from the Senate out of fear they would cost him votes. They say that until they have more information — in the form of released internal memorandums that Estrada wrote in the Justice Department — they cannot allow his confirmation to come to a vote. And, knowing Republicans lack the 60 votes for a cloture vote to end the ordeal, they have filibustered.

But the Democrats' claim is riddled with problems and inconsistencies. First, Estrada's evasive tactic has become commonplace before the Senate judiciary committee (a sad reflection of the increased politicization of the judiciary). So why is it only now that the filibuster is being used? What makes Estrada so different from all the other nominees, Republican and Democrat, who made it through with equally limited responses?

Second, if the Democrats seriously want more information about Estrada, why, when they had the chance after his hearing, didn't they simply present him with a comprehensive set of follow-up questions? Very few senators actually bothered to contribute. Instead, the Democrats are asking to see a broad and untargeted set of internal Justice Department memorandums, a request that is as unwise as it is uncommon. Attorneys should be at liberty to discuss cases with their clients and colleagues without fear of their words being released at a later date. A precedent such as the one the Democrats are attempting to set would be disastrous for the relationship between attorneys and their clients.

What's worse, the tactic is wholly disingenuous. Essentially, the Senate Democrats are demanding to see documents they shouldn't be privileged to see in order to discover something they already claim to know. If they are as certain as they say they are that Estrada is a strong conservative whose jurisprudential vision is sharply at odds with their own, then what's so wrong with bringing his confirmation to a vote? If they wouldn't vote for someone that conservative ordinarily, then they can simply vote against Estrada on the floor.

Which brings us to the third and most troubling problem with the Democrats' plan. The filibuster is a blunt tactic that should not be used wantonly. It exists for use in those special circumstances when a significant minority of the Senate is so opposed to an item up for vote that it is willing to hold up the agenda until the majority concedes. The filibuster essentially ups the minimum votes for passage from 50 to 60. It's already tough enough to get things done in Washington; adding an extra 10-vote requirement to every controversial vote would be both irresponsible and foolish.

America is on the brink of war. Our senators have better things to do than listen to John Byrd spin stories from the Grand Ole Opry. At one point, the filibustering senator drew out his time by recalling, "I remember De Ford Bailey. He could make that harmonica scream." Talk about Iraq. Talk about taxes. But don't talk about De Ford Bailey's prowess on the harmonica because you lack the votes to defeat a nomination that is hardly sensational.

What's been going on in the Senate is a ridiculous charade, and it has to end. The last thing we need is to have to start talking about judicial nominees getting "Estradled."

Lowell Schiller is a Wilson School major from Warren, N.J.