What Estrada's exit means for future battles

Controversial judicial nominee withdraws, signaling rising bar for court appointments.

The abrupt departure of Miguel Estrada as a judicial nominee Thursday represented a victory for the Democrats against the Bush administration and signaled that the filibuster has become a newly important weapon in an escalating battle over the political balance of US courts.

From his first appearance before the Senate Judiciary Committee in May 2001, the softspoken Washington attorney has been a lightning rod for the most bitter partisan fight in the Senate.

Democrats promised to block the nomination from the outset on the grounds that Mr. Estrada, a nominee for the US Court of Appeals in Washington, was a conservative extremist. Since he has no record as a judge, Democrats said they needed to see confidential documents from his prior service as a Solicitor General, but were rebuffed.

At times, the fight brought day to day operations in the Senate Judiciary Committee to a standstill and civility to the breaking point.

"We are afraid that this sets the precedent that a minority filibuster has effectively defeated a judicial nominee, and that is a watershed," says Sean Rushton, executive director of the Committee for Justice, a group supporting conservative constitutionalist judicial nominees. "It's a dangerous approach going forward because it's going to be remembered.... It's clearly not the way the business has been handled for the last 200 years."

But it does reflect the growing importance of the judiciary as a political battleground in recent years. Both parties have focused on the courts as key arbiters on social issues such as abortion.

The use of the filibuster in the Estrada case is the latest step down a road of partisan contention. It could, in effect, set a new bar for judicial nominees - the 60 votes needed to stop a filibuster rather than the majority vote mandated in the Constitution.

It's a blow to the White House and the GOP Senate leadership, which took up weeks of Senate time and an unprecedented six cloture votes in an effort to break the deadlock. President Bush often raised the Estrada nomination in stump speeches. The White House also tried to rally the Hispanic community to support the nominee, a Honduran immigrant, on Capitol Hill.

Moreover, new Senate majority leader Bill Frist put his own credibility on the line and sidelined other issues on the GOP agenda to keep up the fight for Estrada.

Judicial scholars say it could change the dynamics of future GOP judicial nominations. "It is an indication to the Bush administration they cannot practice unilateralism. They have to take into account the concerns of the Democrats and have to be a little more conciliatory and accommodating," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, who has written on the politics of judicial nominations. But he adds that "the administration is also thinking that this will be a good campaign issue - at least they will try to make it one."

The immediate response Thursday from Republican members of the Judiciary Committee signaled no mood for backing down. "It's a terrible day for justice in America when a partisan minority of the Senate can obstruct an extremely well qualified nominee to the federal bench," says Sen. John Cornyn (R) of Texas, a member of the Judiciary Committee and chairman of the Subcommittee on the Constitution. He urged the Senate to confirm remaining nominees, including Texas judge Priscilla Owen and Alabama Attorney General William Pryor, who are also the object of filibusters.

For months, Senate Republicans talked openly about the possible resort to a "nuclear" option to end the filibuster. On May 9, Senator Frist proposed a resolution to amend Senate rules to reduce the number of votes required to end a filibuster from 60 to a simple majority. It was approved by the Senate Rules Committee last June, but never introduced on the floor of the Senate for a vote. Congress watchers say such a move would have spurred Democrats to resist with every procedural power they had.

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