WASHINGTON, Feb. 5 (UPI) -- On Wednesday the United States Senate began the floor debate over the nomination of Miguel Estrada to a seat on the United States Court of Appeals for the D.C. Circuit.
To say that it was contentious is an understatement.
He was voted out of committee last week on a 10 to 9 party line vote recommending full Senate approval of the nomination. Some of the Senate's more liberal Democrats, who are determined to do all they can to keep him from being confirmed, have threatened a filibuster. If they do, it would be the first of a lower court nominee in many decades.
Estrada, like many of Bush's judicial nominees, waited almost two years for the committee to hold a hearing on his nomination. He, like the other nominees, languished because of partisan and ideological politics.
Republicans say the Democrats are at fault while Democrats say the blame rests on the shoulders of the Republicans. Each side engages in rhetorical warfare, tossing numbers to and fro with abandon, to buttress their points.
What matters now, however, is not who started it but what is to be done. Judicial nominations, though always important, were not as a matter of course as political as they have become.
Certain nominations, like those of Clement Haynesworth and Abe Fortas to the Supreme Court, were intense and hard fought but, for the most part, presidents until recently had been given wide latitude by the Senate where judicial appointments were concerned.
That changed after 1980. Ronald Reagan brought a Republican Senate into office with him, giving the GOP control of the judicial nominations process for the first time since Eisenhower's first term.
Reagan and the Republican Senate embarked on a course that transformed the nation's third branch of government. Together, they reshaped the federal courts and the way in which they interpreted the United States Constitution, adding to the bench such luminaries as Antonin Scalia, Douglas H. Ginsberg, and former New York Sen. James Buckley.
These judges, and others with similar judicial philosophies, are anathema to the liberal political and judicial culture that dominated the last quarter of the 20th century. Rather than make law from the bench, as critics of that approach call it, they chose in most cases simply to evaluate the cases before them with an eye to existing precedent and the original meaning of the Constitution.
The warning signs were evident in 1986 as Senate Democrats, seeking an election issue, behaved in a rather prickly manner over the nominations of Dan Manion and Jefferson Sessions to seats on the federal bench.
After the Republicans lost control of the Senate things became much more heated, ultimately exploding over the nomination of U.S. Circuit Judge Robert Bork was rejected for a seat on the U.S. Supreme Court.
The campaign against Bork was a groundbreaking effort in character assassination and distortion, changing the way judicial nominations moved through the Senate.
The Republicans also found reasons to give Clinton judicial nominees a rough time though, and depending on whose figures are used, they confirmed more of them and in quicker fashion.
The politicization of the federal judiciary as a result of the nominating process is disturbing and must come to an end. During the last session of Congress Sen. Chuck Schumer, D-N.Y., removed the fig leaf of competence from the discussion, asserting that for himself and for his liberal colleagues, ideology alone was a sufficient reason to vote down a nominee. Never was a Republican so bold.
Estrada is a prima fascia case of that new philosophy. Fearing that, as the first Hispanic on the D.C. Circuit, he would be a logical choice for a seat on the U.S. Supreme Court sometime in the future, Senate liberals are pulling out all the stops to keep him from attaining the position to which the president has nominated him.
If the Republicans want to preserve any shred of dignity in the process they will take the Democrats up on their threat to filibuster his nomination. But, rather than acknowledge it exists and move on to other business, the Republicans under new Senate Majority Leader Bill Frist, R-Tenn., should force the body to remain in session.
"If some of my colleagues from across the aisle want to stop this nomination," Frist should announce, "then I welcome their effort to try. But we are going to stay here and we are going to stay in session for as long as it takes to get this nomination to the floor. The Senate can consent to the nomination or it can vote it down -- but there is going to be a vote, one way or another."
The integrity of the judicial nominations process will never be restored unless someone draws the line. Miguel Estrada has the endorsement of every major Hispanic group save two. Democrats and Republicans alike with whom he worked while in government attest to his qualifications for the post to which he was nominated. Perhaps Miguel Estrada should be that line.
-- The Peter Principles is a regular column on politics, culture and the media by Peter Roff, UPI political analyst and 20-year veteran of the Washington scene.
