After weeks of listening to competing arguments from within his own Conference, Senate Majority Leader Bill Frist (R-Tenn.) made the call Tuesday to push for a cloture vote this week on the nomination of Miguel Estrada.
Frist said the vote, coming Thursday, would likely be the first of many votes to try to break the Democratic filibuster of Estrada, adding that the time had come to put the Democrats on the record in support of the delaying tactic.
“We are just beginning the fight,” Frist said, adding, “That is the beginning of the battle. This is not going to go away, not until we get an up-or-down vote.”
The decision ended an internal debate within the Senate Republican Conference regarding the best tactical measures to get Estrada confirmed, the first major issue Frist has had to resolve in which he saw a split within his own team of closest advisers.
As Democrats dug in for the fight over the past few weeks, two of the most influential GOP voices, Majority Whip Mitch McConnell (R-Ky.) and Conference Chairman Rick Santorum (R-Pa.), argued against cloture for fear it would only lead to more Democratic filibusters of President Bush’s judicial nominees.
But Sen. Trent Lott (R-Miss.), the former Majority Leader whose advice Frist has consistently sought out on all matters, and Judiciary Chairman Orrin Hatch (R-Utah) pushed for a cloture vote, arguing that a vote would put individual Democrats officially on the record and heighten political pressure on them to eventually approve Estrada.
While a majority of Republicans appeared to agree with Lott and Hatch, Frist went along with the McConnell-Santorum push for no cloture.
By Tuesday afternoon Republicans said they were united in the decision that they had to move to cloture, regardless of the precedent that it would be setting for future nominations and the need to win 60 votes.
“At some point you’ve got to put them on the record,” Santorum conceded. “Obviously the strategy we have been employing hasn’t gotten enough votes.”
“There’s really no good alternative,” McConnell agreed. “My concern is that this becomes routine.”
Still five votes short of 60 on Estrada, Frist expects to continue pushing a hard line by holding cloture votes frequently, moving to other pieces of legislation and then back to Estrada to continue to underscore the importance of his nomination.
GOP Senators said Frist’s handling of the issue demonstrated how he expects to deal with future divisive battles, both with Democrats and within his own Conference. If the Democrats wanted to filibuster, Frist wanted to ensure that they would do so for a long enough time to make clear that they were blocking Bush’s nominee, which had the dual purpose of allowing McConnell and Santorum to pursue their no-cloture strategy.
“He’s let them have their moment,” one Republican said, requesting anonymity.
At a certain point, however, Frist decided he has to push forward to get something done, which in this case meant calling for cloture and setting up the process to move off Estrada and onto other matters, according to Sen. Jon Kyl (R-Ariz.), the chairman of the Republican Policy Committee.
“At a certain point he says, ‘Enough is enough,’” Kyl said.
In publicly announcing the decision to file cloture, Frist noted that the Senate had already held more than 85 hours of debate on the Estrada nomination to the U.S. Court of Appeals for the D.C. Circuit. In the process, Democrats rejected 17 unanimous consent requests for an up-or-down vote on Estrada.
Democrats said Tuesday that Frist has been a bit slow to realize how hardened their position on Estrada was and that it wasn’t going to change just because conservative interest groups had been airing TV ads on a lower-court nomination in their home states.
“We have 41, that’s all we care about,” said Minority Whip Harry Reid (D-Nev.), predicting that his side will maintain enough votes to withstand the fusillade of cloture votes coming their way.
Republicans said that the bigger problem for the institution was the precedent Democrats had set in filibustering Estrada, ensuring that the GOP would use the same tactic in the future with a Democratic president when that administration offered a controversial lower-court nominee they viewed as too liberal.
“You can’t expect one side to require 60 votes and the other to require 50,” Kyl said.
In the meantime, Republicans expect to continue pushing judicial nominations through the Judiciary Committee. “We’re going to stack the calendar with judges,” one GOP Senator said.
There are already at least three circuit court nominees who have cleared Judiciary and are awaiting a floor vote that Democrats have some reservations about: Jeffrey Sutton, Deborah Cook and John Roberts.
Other controversial nominations, including revisiting those of U.S. Judge Charles Pickering and Texas Supreme Court Justice Priscilla Owen, are on the way.
Sens. Tom Harkin (D-Iowa), who has deep reservations about Sutton’s legal work regarding the Americans with Disabilities Act, and Edward Kennedy (D-Mass.) said Tuesday no decisions had been made about future Democratic filibusters of nominees.
Republicans said they are calling the Democratic bluff to see if they will in fact filibuster each of the judges they have problems with, a sequence of events that the GOP believes would lead to a public backlash.
“This is potentially homeland security all over again,” said one GOP aide, referring to the debate last fall that Republicans credit with securing their new majority.
And they will keep coming back to Estrada if need be, Kyl said. He noted that a majority of the Conference had rejected the idea that votes on cloture would lock in the opposition of Democrats such as Sen. Blanche Lincoln (D-Ark.), who has been viewed as persuadable but reiterated her support of the filibuster Tuesday.
He said if the pressure mounts, Democrats would be able to switch their votes on cloture because it is procedural, something they will be able to explain to their constituents.
“Every day is a different set of circumstances,” Kyl said.