President Bush, faced with a month-long Democratic filibuster that is blocking one of his top-priority judicial nominations, called on the Senate yesterday to outlaw such tactics and require "timely" votes on all judicial nominees.
Republicans welcomed the proposal but stopped short of endorsing it. Democrats, who have accused Bush of trying to pack the courts with conservatives, appeared cool to the idea.
Minority Leader Thomas A. Daschle (D-S.D.) said he doubts "very much" that the Senate would change its rules and chip away at its long-standing and fervently protected right to unlimited debate. "The Senate is always going to be the Senate," he said.
Shortly after reading Bush's proposal to the Senate, Majority Leader Bill Frist (R-Tenn.) offered his own proposal to break the impasse over Bush's choice of Miguel Estrada, a conservative Honduran-born and Harvard-educated lawyer, to serve on the U.S. Court of Appeals for the District of Columbia Circuit.
Frist offered to make Estrada available for a second hearing before the Judiciary Committee, as Democrats have demanded, so long as they commit to vote on the nomination by a specific date. But he said nothing about the Democrats' second condition, which is to provide legal memos that Estrada wrote while he worked in the U.S. Solicitor General's office in the 1990s.
Daschle said he was encouraged by Frist's offer but made it clear that Democrats will still demand access to the memos, which they describe as necessary to understanding his legal views. Access to the memos, he said, is "critical."
Bush's proposal, similar to others he made before, was put before the Senate just as it opened a nearly two-hour debate that Frist arranged to discuss the chamber's constitutional role in giving "advice and consent" to judicial nominations. Frist arranged for Vice President Cheney to preside over the Senate during the debate to heighten its significance, but senators mainly recycled arguments made earlier in more than 100 hours of debate on the Estrada nomination.
The fight over judicial nominations has been building for years. Republicans held up more than 50 of President Bill Clinton's nominees when the GOP controlled the Senate. Democrats put off action on Bush's most conservative nominees while they controlled the Senate in 2001 and 2002. But rarely if ever has an appeals court nominee aroused such strong passions, and some senators appear to regard it as a pivotal struggle in the larger battle over the ideological balance on the federal judiciary.
In his letter to Frist and Daschle, Bush called on the Senate to join him "to end the escalating cycle of blame and bitterness." The Senate's judicial confirmation process is broken, he said, and the U.S. system of justice is "at risk."
Bush urged what he described as a permanent rules change to "ensure timely up-or-down votes on judicial nominations both now and in the future, no matter who is the president or what party controls the Senate." He did not mention a specific time frame, but in October suggested the Senate vote within 180 days of a nomination.
Previous proposals to impose timetables have fizzled, because they tend to favor the party holding the presidency and because of the bipartisan devotion to unlimited Senate debate.
Frist's proposal for another hearing on Estrada leaves the memoranda as the chief obstacle to a Senate vote. The administration has refused to release them, describing their confidentiality as essential and noting that all seven living former solicitors general oppose their release. Democrats say other administrations, including Republican ones, have turned over similar memos during confirmation deliberations. They say the memos are essential in light of the relative paucity of information about Estrada's legal views.
Republicans failed last week in a vote to end the filibuster against Estrada, falling five votes short of the 60 needed to force a final vote on the nomination. After Democrats spurned his proposal for a hearing and vote yesterday, Frist scheduled a second vote for Thursday in hopes of ending the delaying tactics. Democrats say they do not expect any senators to change their votes.
Behind the scenes, several senators are trying to find a middle ground on the memos issue but have made no breakthroughs, according to Senate aides.